Attachment response

response

SUBMISSION FOR THE RECORD submitted by DirecTV

response

2004-03-15

This document pretains to SAT-STA-20030903-00300 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2003090300300_367407

t AT H A M& W AT K I N SLLP March 15,2004 Managing Director Attention: FOIA Officer Federal Communications C o d s s i o n 445 12th Street, S.W., Room 1-A835 Washington, DC 20554 Re: DIRECTV, Inc. Response to Pegasus Development Corporation Freedom of Information Act Request To whom it may concern: DDRECTV, Inc. (“cDIREC’I”’) is aware that Pegasus Development Corporation (“Pegasus”) has filed a Freedom of Information Act request to inspect documents submitted to the Commission by DIRECTV on October 7,2003, December 17,2003, December 18,2003, and January 6,2004.’ On February 29,2004, DIRECTV made available in the public file‘the unredacted version of the letter requested by Pegasus that was submitted to the Commission on December 18,2003, and thus does not oppose the release of this particular material. As for DIRECTV’s submission to the Commission on January 13,2004,2 DIRECTV has now introduced into the record redacted versions of this documentation3and thus does not oppose the release of the now-public portions. DIRECTV renews its request that the documents submitted on October 7,2003 and December 17,2003, and the balance of the redacted material fiom the January 13,2004 submission, be kept confidential and withheld from public inspection as well as from inspection by Pegasus. These materials contain trade secret and commercial and financial information that is “of a kind that would not customarily be released to the public.” Therefore, this information is “confidential” under Exemption 4 of the Freedom of Information As explained below, , Letter from Bruce Jacobs, Counsel to Pegasus,to Managing Director, FCC (Jan. 27, 2004) (the “Pegasus FOIA Request”). 1 2 I The Pegasus FOIA Request erroneously requests documents dlegediy submitted to the Commission on January 6,2004. There were no documents submitted to the Commission on this date. DIRECTV assumes that Pegasus meant the documents I submitted on January 13. 3 Letter from James Barker, Counsel to DIRECTV, to Thomas Tycz, FCC (March 15, 2004). 4 See 5 U.S.C. 8 522(b)(4). The Commission adopted Section 0.457(d) of its rules to implement FOIA Exemption 4. See 47 C.F.R. § 0.457(d)(2) (“If it is shown that the materials contain trade secrets or commercial, financial or technical data which would customarily be guarded from competitors, the materials will not be made routinely Dc662743.1

March 15,2004 Page 2 *tATH A MaWAT K I N SLLP DIRECTV and Telesat would suffer substantial competitive harm if this documentation and the information contained therein were disclosed.’ Moreover, this information is not decisionally significant to the Commission’s public interest determination. Exemption 4 requires a federal agency to withhold from public disclosure a person’s confidential commercial and financial information unless there is an ovemding public interest requiring disclosure.6 National Parks v. Morton established a two-prong test for determining if information qualifies for withholding under Exemption 4.7 The first prong asks whether disclosing the infomation would impair the government’s ability to obtain necessary information in the future. The second prong asks whether the competitive position of the person from whom the information was obtained would be impaired or substantially harmed. If the information meets the requirements of either prong, then it is exempted fkom disclosure under Exemption 4.8 The documents dated October 7,2003, December 17,2003, and January 13,2004 meet the second prong of the test. Under the competitive harm inquiry, information shouid be withheld if it is typically withheld by a company and risks harming the competitive position of ~ described in the requests for the person whose information has been provided to the a g e n ~ y .As confidential treatment, the Memorandum of Agreement and Exhibits thereto contain competitively sensitive commercial and financial information not normally disclosed to the public. Their disclosure would be damaging to each of DIRECTV and Telesat if made available to the public or to Pegasus, whch is both a potential competitor of DIRECTV and a potential lessor of capacity fkom Telesat. With the unredacted information, Pegasus and other current or potential competitors of DIRECTV could attempt to needlessly disrupt DIRECTV’s arrangements with Telesat. Such disclosure would also compromise Telesat’s plans by bestowing an unfair advantage on prospective competitors and/or weaken Telesat’s negotiating position with potential business partners or customers. For such reasons, the material is in fact subject to a non-disclosure agreement between DIRECTV and Telesat. In addition, there is no ovemding public interest requiring disclosure. lo The remaining redacted terms =e not decisional!y significant in the relevant proceeding, which involves the available for public inspection.”). See also Critical Mass Energy Project v. Nuclear Regulatory Comm ‘n.,975 F.2d 871,879 (D.C.Cir. 1992) (“Critical Muss”)(defining “confidential” to apply to information “of a kind that would not customarily be released to the public”). 5 See NationaI Parks and Conservation Ass ‘nv. Morton, 498 F.2d 765 @.C. Cir. 1974) (“National Parks”). See 5 U.S.C. 3 522(b)(4). 7 National Parks, 498 F.2d at 770. 8 Id. 9 See id. See akro Critical Mass, 975 F.2d at 879. lo Indeed, the October 7,2003 and December 17,2003 documents were superseded by the January 13,2004 Memorandum of Agreement, and should not be released in any event. DCM62143.1

March 15,2004 Page 3 I L AT HA M& WAT K I NSLLP proposed relocation of DIRECTV 3 to the Canadian orbital position at 82’ W.L., as the Pegasus FOIA Request itself acknowledges.” The material that DlRECTV has made publicly available provides a suacient record for the Commission to reach its public interest determination in that proceeding,’* and for third parties to evaluate meaningfilly their interest in the transaction without compromising the remaining, highly sensitive information contained in the documents. Indeed, the unredacted information submitted to the Commission today and previously on February 19,2004 is directly responsive to Pegasus’ request for information regarding whether “DIRECTV’s arrangement at [82” W.L.] could have a direct impact on Pegasus’ ope~ations.”~~ Accordingly, Pegasus has no legitimate interest in reviewing the remaining materials. Any disclosure would thus reward Pegasus for manipulating the regulatory process and allow it to gain access to commercial contracts that could only be used against the legitimate commercial interests of its potential competitors DIRECTV and Telesat. For the foregoing reasons, consistent with well-established precedent, the Commission should deny Pegasus’s FOIA Request, except to the extent that DRECTV has already made the information available to the public. Respectfully submitted, VGary M. Epstein James H. Barker of LATHAM & WATKINS LLP Counsel for DIR.ECTV Enterprises, LLC cc: Marlene Dortch, Secretary, FCC Managing Director, FCC Jay Whaley, FCC Jennifer Hindin, Esq. Bruce Jacobs, Esq. Susan Eid, DIRECTV I1 Pegasus FOLA Request at 1. Given that Pegasus has missed the deadlines for petitiohng against or offering comment on the above-referenced STAYPegasus also is not formally an interested party in this proceeding with standing to use any of the infomation it has requested. Indeed, DIRECTV’s request for return of the materials submitted on October 7,2003 and December 17,2003 acknowledges that the returned documents will no longer be part of the record and will have no bearing on the Commission’s public interest determination. l3 Pegasus FOIA Request at 1 n.1. DCM62743.1


Document Created: 2004-04-06 18:10:19
Document Modified: 2004-04-06 18:10:19
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