Attachment request

request

REQUEST submitted by Intelsat

request

2006-04-13

This document pretains to SAT-RPL-20041015-00201 for Replacement Application on a Satellite Space Stations filing.

IBFS_SATRPL2004101500201_529324

Jennifer D. Hindin 1 7 7 6 K STREET NW April 13,2006 202.719.4975 WASHINGTON, D C 20006 jhindin@wrf.Com PHONE 202.719.7000 FAX 202.719.7049 S2647 SATAMD-2006M0740~ IB20060009~’ Virginia Office Marlene H. Dortch lntelsat North America LLC 7 9 2 5 JONES BRANCH DRIVE Secretary lntelsat Americas8 SUITE 6 2 0 0 Federal Communications Commission MCLEAN, VA 2 2 1 0 2 445 12th Street, SW PHONE 703.905.2800 FAX 703.905.2820 Washington, DC 20554 Re: Intelsat North America LLC Request for Confidential Treatment www.wrf.com File No. SAT-AMD- ; Call Sign: S2467 Dear Ms. Dortch: Intelsat North America LLC (“Intelsat North America”), by its attorneys, respectfully requests that, pursuant to Sections 0.457 and 0.459 of the Commission’s rules, 47 C.F.R. $9 0.457 & 0.459, the Commission withhold from r public inspection and accord confidential treatment to the attached contract between 0 cy 0 Intelsat LLC and Space Systems/Loral, Inc. (“Space Systems/Loral”) for the Intelsat 9 Americas 9 (“IA-9”) spacecraft, including exhibits A-G thereto (“Contract”) dated March 1 1 , 2005. This agreement contains commercially sensitive information that falls within Exemption 4 of the Freedom of Information Act (“FOIA”). See 5 U.S.C. 8 552(b)(4); 47 C.F.R. 8 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 ( I ) 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 Nutioizal Pal-ks and Coiiservatioii Ass’iz 11. Mol-ton, 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 deizied, 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, lntelsat North America hereby submits the following: (1) ioiz for Wliiclz Coifideiitiul Ti-eatiizeizr is so“g 11t rth America seeks confidential treatment

Ms. Marlene Dortch I April 13, 2006 Page2 for the enclosed binding non-contingent agreement between Intelsat North America and Space S ystems/Loral for construction of the IA-9 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 of the Air Force, 566 F.2d 242,260 (D.C. Cir. 1977). (2) Description of Circumstances Giving Rise to Submission (Section 0.459(b)(2)): lntelsat North America submits this Contract to demonstrate compliance with the first milestone for construction of IA-9 and thereby obtain a reduction in the amount of the bond required by the Commission. See Amendment to Reduce Bond Requirement f o r IA-9, File No. SAT-AMD- (filed Apr. 13,2006). ’ ~ (3) Explanation of the Degree to Which the lizformatioiz 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 lntelsat North America’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 ‘”[c]ommercial’ is broader than information regarding basic commercjal operations, such as sales and profits; it includes information about work performed for the purpose of conducting a business’s commercial operations.” Southerii Company Request for Waiver of Section 90.629 of the Commissiori ’s Rules, Memorandum Opinion and Order, 14 FCC Rcd 1851, 1860 (1998) (citing Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983)). Certain categories of confidential commercial and financial information appear throughout the Contract, jncluding 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 lntelsat North America and Space Systendloral. The Contract provides for the custom design of 1A-9, a state-of-the-art satellite. The Contract provides insight into the process for developing this modern satelljte. its design. and the process of managing construction and placement into service. This information is inextricably

Ms. Marlene Dortch April 13,2006 Page 3 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 Intelsat North America and Space S ystemsLora1. (4) Explanation of the Degree to Which the Informatioiz Concerns a Service that is Subject to Competitioiz (Section 0.459(b)(4)):Substantial competition exists in the telecommunications satellite industry. Other players in the geo-stationary satellite services market include SES Americom, Eutelsat, Telesat, and Satmex, among others. The Contract concerns the design, development, and construction of the 1A-9 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) Explaizatioiz of How Disclosure of the lizforinatioiz Could Result iiz Substantial Competitive Harm (Section 0.459(b)(5)):Release of the Contract could have a significant impact on Intelsat North America’s commercial operations. If competitors had access to the information for which Intelsat North America 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 Intelsat North America’s competitors obtained access to this information, they would unfairly benefit from the time and resources that lntelsat North America expended in negotiating the Contract and meeting the construction and CDR milestones for 1A-9, and could use this information to negotiate more favorable terms in their own construction contracts. This could allow competitors to better compete against lntelsat North America and could negatively affect Intelsat North America’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 Narioizal Parks and Conservatioiz Ass’ii I). Kleppe, 547 F.2d 673, 684 (D.C. Cir., 1976), and under Sections 0.457(d)(2) and 0.459(b). (6) Ideiit~fificutioiiof A i i j ’ Measures Tukeii to Prevent Uiiautliorized Disclosure (Section 0.459(b)(6)):lntelsat North America has gone to great lengths to ensure that this Contract is not disclosed to third parties or otherwise disclosed to

Ms. Marlene Dortch April 13, 2006 1 Page4 1 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 Intelsat North America and Space S ystems/Loral, and requires written consent for the release of any proprietary information. (7) Identification of Whether the Iizforniation is Available to the Public and the Extent of Any Previous Disclosure of the Iigormation to Third Parties (Section 0.459(b)(7)):Intelsat North America has not made this Contract available to the public and has not disclosed this Contract 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(b)(8)): lntelsat North America respectfully requests that the Commission withhold this Contract from public inspection for the life of the satellite. On balance, the need to protect Intelsat North America 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, lntelsat North America respectfully requests that the informatjon contained in its Contract with Space Systems/Loral for construction of the IA-9 satellite be kept confidential and be withheld from public inspection in its entirety . Please contact the undersigned with any questions. Re spect full y submitted,


Document Created: 2006-09-14 11:47:53
Document Modified: 2006-09-14 11:47:53
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