Attachment request

request

REQUEST submitted by Telesat

request

2006-07-10

This document pretains to SAT-PPL-20060516-00061 for Permitted List on a Satellite Space Stations filing.

IBFS_SATPPL2006051600061_510610

1776 K STREET NW WASHINGTON, OC 20006 PHONE 202.719.7000 ’ FAX 202.719.7049 Virginia Office July 10,2006 R ECEIE! 9 7925 JONES BRANCH DRIVE SUITE 6200 Marlene H. Dortch MrLEAN. VA 22102 Secretary PHONE 703.905.2800 Federal Communications Commis FAX 703.905.2820 445 12th Street, SW Washington, DC 20554 www.wrf.com Re: Telesat Canada, Request for Confidential Treatment of Anik F3 Construction Contract Pursuant to Sections 0.457 and 0.459 of the Commission’s Rules EchoStsr Satellite L.L.C., Request for Bond Reduction File Nos. SES-LFS-20040831-01253, SES-L1C-20050621-00799 Telesat Canada, Petition for Declaratory Ruling to Add Anik F3 to the Permitted List, File No. SAT-PPL-20060516-00061; Call Sign S2703 Dear Ms. Dortch: Telesat Canada (“Telesat”), by its attorneys, respectfully requests that, pursuant to Sections 0.457 and 0.459 of the Commission’s rules, 47 C.F.R. $5 0.457 & 0.459, the Commission withhold from public inspection and accord confidential treatment to the attached contract dated March 30, 2004 between Telesat and EADS Astiurn SAS (“Astrium”) for construction of the Anik F3 satellite, including the appendices and attachments (“Contract”). On December 20,2005, the Commission granted EchoStar Satellite, L.L.C. (“EchoStar”) a blanket authorization to provide Direct-to-Home Fixed Satellite Service to earth stations in the United States using Anik F3, which is owned and will be operated by Telesat pursuant to a Canadian license.’ On January 19,2006, EchoStar submitted a $3 million bond and simultaneously requested that it be permitted to reduce the amount of the bond from $3 million to $750,000 because it I EchoSrar Suiellite, LLC; For Blanket Authorization To Operate 1,000,000 Receive-Only Earth Stations To Prolide Dirrcr-ro-Home Fixed Satellite Sewice in the United States Using the Canadian-Author*ized AhVK F3 Sarelli W.L. Orbital Location; For Authority to Operate Two 9.0 Meter Anrennas in Authorization, 20 FCC Rcd 20083 (20 ---l-w7----1[-- 1

Ms. Marlene Dortch July 10,2006 Page 3 version being submitted for the FCC’s review still contains commercially sensitive infonnation that f d l s within Exemption 4 of the Freedom of Information Act (“FOIA”). See 5 U.S.C. 5 552(b)(4); 47 C.F.R. 4 0.457(d). Exemption 4 pennits parties to withhold from public information “trade secrets and commercial or financial information obtained from 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 go\~enin~ent’s ability to obtain necessary information in the future; or (2) cause substantial hann to the coinpetitive position of the person from whom the information \%.asobtained. See ,Vational Parks and Conservation Ass ’n v. Morton, 498 F.2d 7 6 5 , 770 (D.C. Cir. 1974) (footnote omitted); see also Critical Muss Enei-gy Project 1’. A’RC, 975 F.2d 871, 879-80 (D.C. Cir. 1992), cert denied, 507 U.S. 984 (1993). Section @.457(d)(2)allo\vs persons submitting materials that they wish be withheld from 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, Telesat hereby submits the following: (1 ) Ideiirijicnrioii of Speci$c li.lfai-iizationfor M/hich Confidential Treatment is Sozighr (Seclion 0.4.59jhj(I)). Telesat seeks confidential treatment for the enclosed binding non-contingent agreement between Telesat and Astnum for construction of the Anik F3 satellite. The agi-eement contains commercially sensitive information that falls \?Tithin Exemption 4 of FOIA, and such information is inextricably intertwined with other provisions of the Contract. See Mead Data Cent. v. United Siates Dep’t ofihe Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). (2) Desci-iption of Circumstances Giving Rise to Submission (Section 0.459@)(2)); Telesat submits this Contract to demonstrate compliance with the first (Continued. . .) with the licensee’s milestones; and (4) require the licensee to make significant initial payments and the majority of payments well before the end of the construction period. See Letter from Robert G. Nelson, Chief, Satellite Di\%ion, Inlernational Bureau, to Bettina Eckerle, General Counsel, DigitalGlobe, lnc.: Re: DigitalGlobe, Inc, Request for Public Notice of Milestone Completion; File No. SAT-MOD-20040728-00151; Call Sign: S2129, DA 06-862 (rel. Apr. 14,2006).

Ms. Marlene Dortch July 10,2006 Page 4 milestone for construction of Anik F3, in support of Echostar’s request for reduction of the bond associated with its blanket earth station authorizations and in support of Telesat’s request for bond reduction or waiver. (3) E.xplaiiarioi7 oJrke Degree to Which the Information is Commercial or Finaiicial, or Coiiraiiis a Ti-ode Secret or Is Privileged (Section 0.459@)(3)): The Contract contains sensitiw commercial and financial information that competitors could use to Teleaat’s disad\mtage. The courts have given the terms “commercial” and “ f i n a i ~ i a l , ”as used in Section 552(b)(4), their ordinary meanings. See Board of Trade 1’. Coiiinioditj~Futul-esTrading Comm ’n, 627 F.2d 392,403 & n.78 (D.C. Cir. 1980). The Coinmission has broadly defined commercial information, stating that “’[c]ommercial’ is broader than infonnation regarding basic commercial operations, such as sales and pi ofits; it includes information about work performed for the purpose of conducting a bu~iness’scommercial operations.” Soidt1iel-n Company Reqiresr foi- 14’0iwi. OjSec 11017 50.629 of the Commission ’s Rules, h4emorandum Opinion and Order, 14 FCC Rcd 1851, 1860 (1998) (citing Public Citizen Health Reseayclz GI-oznp FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983)). 11. Cenain categories of confidential commercial and financial information appear tluoughout the Contract3including without limitation: descriptions of technical work pi o g ~ ams; spacrci afi performance specifications; business planning infonnation; financial tenns and conditions; and pricing and financial nonperfonnance penalties. all of which were negotiated between Telesat and Astrium. The Contiact prolides for the custom design of Anik F3, a state-of-the-art satellite. The Contract pi o\ ides insight into the process for developing this modem satellite, its design: and the piocess of managing construction and placement into service. This information is inextricably intertwined with the other provisions of the Contract. Thus, the Contract in its entirety should be treated as confidential. A decision not to treat this infonnation as confidential could affect the Commission’s ability to obtain necessary infonnation in the future, and disclosure likely would cause substantial hann to the competitive positions of Telesat and Astrium. (4) Explanazioii ofthe Degree 10 7J.7iich the Information Concerns a Service that is Subjecr I O Comperirion (Secrion 0.459@)(4)): Substantial competition exists in the telecoininunications satellile industry. Other players in the geo-stationary satellite senlices market include Intelsat, SES Americom, Eutelsat, and Satmex, ainong others. ‘The Contract concerns the design, development, and construction of the Anjk F3 satellite, ivhich will compete with satellite services offered by these

Ms. Marlene Dortch July 10,2006 Page 5 other companies, as well as ~ v i t hthe services of terrestrial providers. The presence of these in an^ co~npetitorsmakes imperative the confidential treatment of sensitive commercial information. (5) E~plaiiarioiio f H o ~Disclosure * of the Information Could Result in Substaiitial Coiwyeririiz Harm (Secrion 0.459@)(5)): Release of the Contract could lia\’e a significant impact on Telesat’s commercial operations. If competitors had access to the infom~ationfor \vliich Telesat seeks confidential treatment, it could be used as the basis for negotiating their own satellite construction contracts to meet tl-ieii 0 ~ 7 milestones, 1 to de\felop a competing satellite network, and/or to develop competing senvice offerings, whetlier satellite or terrestrial. If Telesat’s competitors obthined access to this information, they would unfairly benefit from the time and I esources that Telesat expended in negotiating the Contract and meeting the construction and CDR inilestones for Anik F3, and could use this information to negotiale more fa\ orable tenns in their own construction contracts. This could allow conipetitors to better compete against Telesat and could negatively affect Telesat’: hture negotiations with potential and existing business partiiers/custoii?e~-s.Thus: it is “virtually axiomatic” that the information qualifies for ~ ~ ~ i h h o l dunder i n g Exemption 4 of FOIA, see h‘ational P a r h and Consenlation Ass ’n v. Kleppie, 547 F.2d 673, 684 (D.C. Cir., 1976), and under Sections 0.457(d)(2) and 0.459(b). (6) ldintificarioii of Aiq’ Measures Taken to Prevent Unauthorized Disclosure (Siecrioii 0.45b(?j/(6)): Telesat has gone to great lengths to ensure that this Contract 1s 1101 disclosed to third putties or otherwise disclosed to unauthorized parties. The Contract contains proi~isionsrequiring both parties to maintain confidentiality of proprietary infor~nation,which includes the terms of the Contract. The Contract includes detailed procedures for use of proprietary information by representatives of both Telesat and Astnum, and requires written consent for the release of any proprietary information. (7) Jdenti3cation of T$lietlier the Inforination is Available to the Public and the Exrelit of Ai7y Previous Disclosure of the hiformation to Third Parties (Section 0.459@)(7)): Telesat has not made this Contract available to the public and has not disclosed this Contract to any third parties. (8) Jusrifi~arionoJPei-iod During 11liich the Submitting Party Asserts that the A4ulerial Should A’or be Aiwiluble for Public Disclosure (Section 0.459@)(8)):

has. Marlene Dortch July 10,2006 Page 6 Telesat I espectfull~I cquects that the Commission withhold this Contract from public ~iispect~on fni tlie expected life of the satellite (ie.,at least 15 years from t m e of launcli). On I-dance. the need to protect Telesat fi-om competitive harm as a result of d i s c l o m e of this Contract outweighs any benefit of public disclosure 14 Iiich, I n the 01 diiiary course of business, would not otherwise occur. , ~ tlie foregoing reasons, Telesat respecthlly requests that the Accoi d j x g l ~for infobmiation cnnlaiiicd in its Contract with Astrium for construction of the Anik F3 sateIlite be kept confidential and be withheld from public inspection in its entirety. Please contact the undersigned with any questions. Respectfully submitted, Jenkfer D. Hindin


Document Created: 2006-07-11 11:29:57
Document Modified: 2006-07-11 11:29:57
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