Attachment request

request

REQUEST submitted by Telesat Canada

request

2006-11-27

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

IBFS_SATPPL2006051600061_538342

w FOR INTERNAL USE onty BUSINE SS PROPRIETARYVERSION Wiley Rein & Fielding ur ‘ Proprietary Treatment Re NON—PUBLIC quested ORIGINAL 1776 K STREET NW Bert W. Rein November 27, 2006 202.719.7080 WASHINGTON, DC 20006 PHONE 202.719.7000 F’LED/A CCEPTEBin@wrf.com FAX 202.719.7049 Marlene H. Dortch Secretary NO © Virginia Office Federal Communications Commission V 2 7 2006 445 12th Street, SW 7925 JONES BRANCH DRIVE Federal Communications Commiss; Washington, DC 20554 SUITE 6200 McLEAN, VA 22102 Secretary _ PHONE 703.905.2800 FAX 703.905.2820 Re: Telesat Canada, Request for Confidential Treatment of Anik F3 www.wrf.com Construction Contract Pursuant to Sections 0.457 and 0.459 of the Commission‘s Rules EchoStar Satellite L.L.C., Request for Bond Reduction File Nos. SES—LFS—20040831—01253, SES—LIC—20050621—00799 Telesat Canada, Petition for Declaratory Ruling to Add Anik F3 to the Permitted List, File No. SAT—PPL—20060516—00061; Call Sign $2703 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. §§ 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 Astrium 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 had met three of the four implementation milestones set forth in its authorization.* 1 EchoStar Satellite, LLC; For Blanket Authorization To Operate 1,000,000 Receive—Only Earth Stations To Provide Direct—to—Home Fixed Satellite Service in the United States Using the Canadian—Authorized ANIK F3 Satellite at the 118.7 [degrees] W.L. Orbital Location; For Authority to Operate Two 9.0 Meter Antennas in the Ku—band in Cheyenne, Wyoming, Order and Authorization, 20 FCC Red 20083 (2005). 2 Letter from Philip L. Malet, Counsel for EchoStar Satellite L.L.C., to Marlene H. Dortch, Secretary, FCC, Re: EchoStar Satellite L.L.C., Authorization to Operate Earth Stations with Telesat Canada‘s Anik F3 Satellite, File Nos. SES—LFS—20040831—01253, SES—LIC—20050621~—00799 (filed Jan. 19, 2006). ‘ " Fon INTERNAL USE ONLY NON—PUBLIC

BUSINESS PROPRIETARY VERSION _ Wiley Rein & Fielding ur Proprietary Treatment Requested Page 2 On May 16, 2006, Telesat filed a petition for declaratory ruling to add Anik F3 to the Permitted List and sought a bond reduction or waiver based on EchoStar‘s submission of a bond for the same satellite and the satellite‘s substantial construction.* EchoStar holds an FCC license for U.S. service via Anik F3 which is fully constructed and scheduled for launch in 2007. Although Telesat previously submitted redacted versions of its contract with EADS Astrium to construct Anik F3, on November 17, 2006, the FCC asked EchoStar to submit an unredacted version of the contract. Attached is an unredacted copy of the Anik F3 contract. Nevertheless, the full version contains commercially sensitive information that falls within Exemption 4 of the Freedom of Information Act ("FOIA"). See 5 U.S.C. § 552(b)(4); 47 C.FR. § 0.457 (d). Exemption 4 permits 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 government‘s ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from 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.24 871, 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 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) Identification ofSpecific Information for Which Confidential Treatment is Sought (Section 0.459(b)(1)). Telesat seeks confidential treatment for the enclosed j > Telesat Canada, Petition for Declaratory Ruling to Add Anik F3 to the Permitted Space Station List, File No. File No. SAT—PPL—20060516—00061 (filed May 16, 2006); Public Notice, Policy Branch Information, Space Station Applications Accepted for Filing, Report No. SAT—00366 (June 2, 2006).

BUSINESS PROPRIETARY VERSION WileyY Rein & Fielding d]ng uur ' Proprietary Treat ment Requested Page 3 binding non—contingent agreement between Telesat and Astrium for construction of the Anik F3 satellite. The agreement contains commercially sensitive information that falls within Exemption 4 of FOIA, and such information is inextricably intertwined with other provisions of the Contract. See Mead Data Cent. v. United States Dep‘t ofthe Air Force, 566 F.2d4 242, 260 (D.C. Cir. 1977). (2) Description of Circumstances Giving Rise to Submission (Section 0.459(b)(2)): Telesat submits this Contract to demonstrate compliance with the first 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) Explanation ofthe Degree to Which the Information is Commercial or Financial, or Contains a Trade Secret or Is Privileged (Section 0.459(b)(3)):: The Contract contains sensitive commercial and financial information that competitors could use to Telesat‘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 information about work performed for the purpose of conducting a business‘s commercial operations." Southern Company Requestfor Waiver ofSection 90.629 ofthe Commission‘s Rules, Memorandum Opinion and Order, 14 FCC Red 1851, 1860 (1998) (citing Public Citizen Health Research Group v. FDA, 704 F.2d4 1280, 1290 (D.C. Cir. 1983)). Certain categories of confidential commercial and financial information appear throughout the Contract, including without limitation: descriptions of technical work programs; spacecraft performance specifications; business planning information; financial terms and conditions; and pricing and financial nonperformance penalties, all of which were negotiated between Telesat and Astrium. The Contract provides for the custom design of Anik F3, a state—of—the—art satellite. The Contract provides insight into the process for developing this modern satellite, its design, and the process 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 information as confidential could affect the Commission‘s . ability to obtain necessary information in the future, and disclosure likely would cause substantial harm to the competitive positions of Telesat and Astrium.

BUSINESS PROPRI ETARY VERSION Wiley Rein & Fielding ur ~ Pr. oprietary Treatment Re quested Page 4 (4) Explanation ofthe Degree to Which the Information Concerns a Service that is Subject to Competition (Section 0.459(b)(4)) Substantial competition exists in the telecommunications satellite industry. Other players in the geo—stationary satellite services market include Intelsat, SES Americom, Eutelsat, and Satmex, among others. The Contract concerns the design, development, and construction of the Anik F3 satellite, which will compete with satellite services offered by these other companies, as well as with the services of terrestrial providers. The presence of these many competitors makes imperative the confidential treatment of sensitive commercial information. (5) Explanation ofHow Disclosure ofthe Information Could Result in Substantial Competitive Harm (Section 0.459(b)(5)): Release of the Contract could have a significant impact on Telesat‘s commercial operations. If competitors had access to the information for which Telesat seeks confidential treatment, it could be used as the basis for negotiating their own satellite construction contracts to meet their own milestones, to develop a competing satellite network, and/or to develop competing service offerings, whether satellite or terrestrial. If Telesat‘s competitors obtained access to this information, they would unfairly benefit from the time and resources that Telesat expended in negotiating the Contract and meeting the construction and CDR milestones for Anik F3, and could use this information to negotiate more favorable terms in their own construction contracts. This could allow competitors to better compete against Telesat and could negatively affect Telesat‘s future negotiations with potential and existing business partners/customers. 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) Identification ofAny Measures Taken to Prevent Unauthorized Disclosure (Section 0.459(b)(6)): Telesat has gone to great lengths to ensure that this Contract is not disclosed to third parties or otherwise disclosed to unauthorized parties. The Contract contains provisions requiring both parties to maintain confidentiality of proprietary information, which includes the terms of the Contract. The Contract includes detailed procedures for use of proprietary information by representatives of both Telesat and Astrium, and requires written consent for the release of any proprietary information. (7) Identification of Whether the Information is Available to the Public and the Extent ofAny Previous Disclosure ofthe Information to Third Parties (Section 0.459(b)(7)): Telesat has not made this Contract available to the public and has not

BUSINESS PROPRIETARYvERSION Wiley Rein & Fielding ur ~ _ ‘Proprietary Treatment Requested Page 5 disclosed this Contract to any third parties. Instead, to the extent any public disclosure is required, Telesat has submitted a suitably redacted version. (8) Justification ofPeriod During Which the Submitting Party Asserts that the Material Should Not be Availablefor Public Disclosure (Section 0.459(b)(8)): Telesat respectfully requests that the Commission withhold this Contract from public inspection for the life of the satellite. On balance, the need to protect Telesat from competitive harm as a result of disclosure of this Contract outweighs any benefit of public disclosure which, in the ordinary course of business, would not otherwise occur. Accordingly, for the foregoing reasons, Telesat respectfully requests that the information contained in its Contract with Astrium for construction of the Anik F3 satellite be kept confidential and be withheld from public inspection in its entirety . Please contact the undersigned with any questions. Respectfully submitted, Bert Rein C\o Counselfor Telesat Canada Attachment: Request for confidentiality and non—public Telesat—Astrium contract.


Document Created: 2006-11-28 16:07:41
Document Modified: 2006-11-28 16:07:41
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