Attachment redacted

redacted

SUBMISSION FOR THE RECORD submitted by WB Holdings

REDACTED

2004-09-15

This document pretains to SAT-STA-20040914-00176 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2004091400176_400512

ta0o ncsrmmamsreeenrow Harais, Insasncies ho anroid me r0730.1001 Y alee Ieveninemascon (OHO TSitG arikehns REDACTED VERSION FOR PUBLIC FILE SEP 2 8 200, eptember r 15, 2004 Septembe Polcy Branch BV HAND DELIVERY RECEIVED Marlene H. Dortch SEP 1 5 2004 Secretary Federal Communications Commission FederCammoncatens Comnisson 445 12" Street, S.W. Oficot Secntay Washington, DC 20554 Re: WB Holdings 1 LLC — Requestfor Special Temporary Authorization SAT—$74—20040914—00176 Request for Confidential Treatment Dear Ms. Dortch: Pursuant to Sections 0.457 and 0.459 of the Commission‘s rules, 47 C.F.R. §§ 0.457 and 0.459, WildBlue Communications, Inc. and WB Holdings 1 LLC (collectively, "WildBlue") respectfully request that the Commission withhold from public inspection, and accord confidentialtreatment to, the enclosed unredacted version ofthe binding Letter Agreement (the *Agreement‘),dated September 13, 2004, between WildBlue and Intelsat LLC ("Intelsat"). A redacted version was previously filed in connection with WildBlue‘s above referenced request for Special TemporaryAuthorization ("STA®). The Agreement relates to WildBlue‘s purchase ofthe Ka—band payload aboard the Intelsat Americas 8 (‘1A—8") satellite thatis scheduled to be launched later this year. The redacted portions comprise sensitive trade secrets and commercial and financial information that squarely fall within Exemption 4 of the Freedom of Information Act, which provides that the public disclosure requirement ofthe statute "does not apply to matters that are ... (4)trade secrets and commercial or financial information obtained from a person and privileged or confidential."" WildBlue is voluntarily providing this suso.ss20

Hamus, Wiisime & Gramis uur Marlene H. Dortch September 15, 2004 Page 2 of S trade seeret, commercial and financial information, which is "of kind that would not customarily be released to the public® by WildBlue, in connection with ts STA request to operate the Ka—band payload on 1A—# at the 109.2° W.L. orbital location licensed to WildBlue. Therefore, this information is "confidential" under Exemption 4 of FOIA.* Moreover, WildBlue would suffer substantial competitive harm ifthe redacted portions of the Agreement were disclosed." In support othis request and pursuant to Section 0.459(b) ofthe Commission‘s rules," WildBlue provides the following information. 1. Inentirication or Ti Sreciric Inrormation ror Wick Coxrinextiat. Treatatent is Sovoir® WildBlue secks confidential treatment of those portions ofthe Agreement that were redacted from the STA filing. 2. Descrurrion or Circumstances Givinc RisTo titeSummission® The Agreement is being provided to Commission Staff in this proceeding out of an abundance of caution to ensure that the record is complete. 3. Exruanation or ts Deorto Winic tht Inrormation Is Commtrctat or Financixt, or Contains a Trape Secret or Is Priviiecen‘ The information for which WildBlue seeks confidential treatment contains sensitive commercial and financial information "which would customarily be guarded from competitors."* Certain categories ofconfidential commercial and financial information appear throughout the Agreement,including without limitation disclosures of business plans, pricing, and other financial terms and conditions, all of which were negotiated between the parties. Moreover, the Agreement would not customarily be * See Crical Mass Energy Projectv. NRC, 975 F20 $71, 79 (D.C. Cr. 1992). ‘See National Parks & Conservation Ass‘nv. Morion, 498 F28 768 (D.C. ir 1974) arcrn goass®) $ a7 cer goasst0). in car goassic). f i ceR 5osssic) arcrn 5o49.

Hamus, Wirsue & Grns rur Marlens H. Dortch September 15, 2008 Page 3 ofS released to the public by WildBlue or Intelsat, and therefore it is covered by Exemption 4 of FOIA when, as here, it is submited by WildBlue to the Government 4. Exr.aNation or Titt DeoikE to WittcH Te Inrormation Concerns a Service Trat Is Susscr to Comrettmon The Agreement concerns the acquisition of a Ka—band payload capable of providing a range of satellite services throughout North America. This payload will provide WildBluethe abilty to develop data on Ka—band operations that would be of commercial value to it and a number of current Commission licensees of potentially competitive Ka—band satellitesystems and equipment manufacturers. 5.. Exruanation or How Discrosure or TiInFormarion Couto ResuurIn Susstantia Couretmive Harm!* Because the Agreement reflects negotiations over the structure of a Ka—band payload acquisition and the value ofsuch a payload, the information for which WildBlue seks confidential treatment could be used by its competitors as the basis for () negotiating a Ka—band payload acquisition contract,(i) developing a competing satellte network, or(ii) designing competitive broadband or video service offerings (satellte or terrestral). Moreover, disclosure ofthis contract could adversely affect WildBlue‘s relationship with other vendors. Vendors have a legitimate expectation that their confidentil information and trade secrets — pricing information, commercial conditions, etc.— will not be made available to thid parties who do not have a relationship with their customer‘s program. Disclosure of the Agreement in thi case could harm WildBlue in itsfuture negotiations with vendors. 6. Inevmirication or Any Measures Tagex By Tie Sumvrrrinc Parry To Prevent Unaurionzen Disciosure" Paragraph 5 of the Agreement requires the parties to maintain confidentility of proprietary information, which includes the terms ofthe contract itself F 47 CER §04900. 4 #7CER 5048908 n arorngoast®

Hanus, Wiroume & Granns tur Marlene H. Dortch September 15, 2004 Page 4 of S 7. Inexrirication or Wikrier rite Inrormamion‘Is Avaicamus to The Pusurc anb ue Exrent or Any Previous Discuosure or tue Information to Tumo Parties"" The redacted portions ofthe Agreement have not previously been disclosed to the public or any third party. 8. Jusrinication or Wiremier mie Inrormnion‘Is Avaicamue to rie Pusuic anb mie Extent or Any Previous Discrosure or tus Inrormation to Trio Pacries® As demonstrated above, WildBlue and Intelsat have a significant interest in maintaining the confidentiality of the propriety commercial and financial information contained in the Agreement, and have taken steps to ensure such confidentality. WildBlue requests that the redacted portions ofthe Agreement be treated as confidential for a period of atleast three years. The commitment of the parties to preserve the proprietary nature of the documents is demonstrated by their perpetual obligation to maintain confidentality ofthe proprictary information. Therefore, WildBlue‘s request for confidentialtreatment for a period of three years is reasonable. 9. Oiter Inrormation Tiat WiroBuve Beuteves May Be UsErut In Assessive Wircrier Its Reoursr ror Conrivexriaurry Snoup Br Granten‘" The Commission has recognized that spacecraft procurement agreements contain competitively sensitive information, and need to be protected from disclosure."" Consistent with this conclusion, the Commission has adhered to a policy of not authorizing the disclosure of confidential information on the mere chance that it might be helpful toa third party. Rather, the Commission insists on a showing that the information is a necessary link in a chain of evidence that will resolve an issue before the Commission.!*. Sincethe majorityof the terms of the Agreement are already available from the redacted copy filed with the STA request, it ihighly unlikely that such a showing could be made. * a7chRoasot0) * grorngeast®. © arorngoeasnn9) 9. See eg, OB Anericon CommunicationsInc 16 ECC Red. 6731 (In‘I Bu2001) Exantination ofCurret Policy Concerningthe Treatment ofConfidental Informarion Subnited to the Commision, 13 ECC Red. 24816, 8 (1998)

Hamus, Wisume & Granods ue Marlene H. Dortch September 15, 2004 Page S oS For these reasons, WildBlue respectfully requests that the Commission withhold from public inspection, and accord confidential treatment to,the unredacted version of the Agreement attached hereto. Respectfully submitted, William M. Wiltshire Hawus, Wirrsire& Granats LLP 1200 Eighteenth Street, N.W. Washington, DC 20036 202—730—1300 Counselfor WildBlue

‘ Intelsat. noursiuns rastex 19 Saptember 2004 Ref: President—19—09—2008 Mr. Tom Moore ceo widilue 5970 Greenwaod Plaza Blvc., Sute 300 Greenwaed Vilage, C0 80111 Dear Mr. Moore: THIS LETTER AGREEMENT (Lettor Agrooment‘)is entered into by and between Inteleat LLC, a Delaware Iimited libilly company with offces located at North Tower, 2" Fioor, 90 Pits Bay Road, Pombroke HMO8, Bermuda (‘Intelsat), and WidBlue Communtcations, Ins. wih offcee located at 5870 Greenwood Plaza Blvc., Sute 300 Greenvood Vilege, CO 80111. (WildBue), Intelsat and WildBlue have been dlscuesing the purchase of the Ka— | band payload on the Intelsat Americas 8 satallte ("1A—8") by WidBlue, Ifthe following accurataly reflects your understanding of the result of our discussions, please so Inleate by signing above your name at he end of this Letter Agreemont 1. Scane and Purpose ofthe Project. The purposa of this Letter Agreement is to sorve as the material terms for a defintive agreement bebweon WidBlue and Intelsat (‘Detinitive Agreement)for the purpose stated above. 4 Gommercia! Relatlonships. Upon execution of tis Lettor Agreement, the Partes shall use their commerdally reasonable efforts to onter Into a Dotnitve Agreement which shall include the following commercial arrangements: (e) Purchase Price: WidBlue agress to acquire the entre Ka band payload on | 1A—8 (‘Ka band Payload‘) and to contrlbute to the cost olaunching, insuring and providing TT&C Services for 1A—8 forthe fotal purchase price of (‘Total Purchase Prico‘), payable as folows: sEpacitD () Purchase Inal Price: o upon dalvery of the Ka band Payload (Delivery®). Delivery i shall be deemed to have accurred, and ownorship of the Ka band REDACTED payoeg shall transfer to WidBlue, when 1A8 reaches 109.2 degress W.L. ntmus Herm ue anton o rety oecbou 1c on Smvnnlonintion Tot10 fot taraito

Mr. Tom Moore Page 2 REDACTED o four weaks after Delvery (this amount, together wih the payable upon Delvery, the ‘Iitial Purchase Price‘). (1) Charges REDACTED 0 on the fiet anniversary of Delivery ; o. An addional firancing charge of ‘ on ich of the second, third, fourth and ffth anniversaries of Delivery. (2) As soon as practlcable after launch, Intelsat willplace 1A—8 at 109.2 degrees W.L. Afer Delvery, 1A—6 will remain at 109.2 dagreas W.L. for no less than the minimum time necessary to alow WidBlue to porform ts intended commercial sorvice in the Ka band from 109.2 W.L. (the "Minimum Perlod). REDACTED (c) Upon payment of to WidBlue, Intelsat has tho rignt (‘Call Option®) to purchase back the Ka band Payload from WikdBlue at any tme REDACTED (¢) At any tme felowing Delvery and payment of the Inltal Purchase Prico, Widve may require Intelsat to purchase the Ka band Payload from WidBlue for (Put Option®) REDACTED (e) Exercise of other the Call Option or the Put Option will relleve WikiBlue of the obigation to pay any ungald portin of the Financing Charge as of the date of exercise, but not from the obligation to pay any unpald portion of the Inlal Purchase Price, whether or not due at time the Call Option or the Put Option is exerelsed. Upon exercise of the Put Option or the Call Option, WidBlue shall cease all commercial operations on the Ka band Payload. (0 Intelsat, n ts sole and absolute discretion and at ts cost, may move 1&—8 from that location at anytime after the earter of () expiration of the Minimum Poriod, (})the exercise by Intolsat of the Call Option, or (1}) the exercise by WiiBlue of the Put Option. 3. Obligation. This Letter Agreement is the bindirig obligation of the Parties. 4. Agreament. The Parties agree to negotiate in good faith, and to use their commercialy reasonable efforts to conclude and execute, a Defintve Agreement win respect to the matters contained herein as expeditiously as posslble,

Mr. Tom Moore Page 3 preferably on or before 30 September 2004; provided, however, that nothing in this Letter Agreement shall obligate other Party to execute a Dafinive Agroement. The Parties agree that any Dofinitve Agroement that may be concluded and executed in connection herowlh shall bo governed by the laws of the State of New York, U.S.A. 5.. Confidentialty. The Partos agree that any Information recelved from the other Party in connection with the tansacon(s) contomplated herein (ncluding this Lettor Agreemen) illbe used sclalyforthe purpose of evaluating and assessing the itorests of a possible transacton batwean the Partis, and that they wil safeguard the confidentalty of any such information with at least the same degree of care they apply to the safeguard of thair on confdential information, and in no event less than wth the same degree of care a reasonable person would exert under the cicumstances. The provisions of this paregraph 5 wil survive the termination of his Lettor Agrosmont. 6. Expenses. Each Party wil pay all of its expenses, including logal fees, ncured in connection with the negotlation and conclusion of contemplated transactions relatig to the Deffitve Agrooment 7. TerminationElthor Party may terminate this Lotter Agroament at eny time and for any raeson by sending writen notlce thereot to the other Party, Unicss carlier terminate, this Lettor Agroement shall remain valld for a portod of two (2) months, provided that this Letter Agreement may be extended by mutual writen agreemont Notwithstanding the foregoing or anything contained in tnis Lefter Agreemont to the contrary,tis Letter Agreement is subject in all respacts to the approval of the managing member of Intelsat and the board of directors of Intelsat, Ltd. and shall terminate automaticaly and have no further force or effect if such approvals have not been obtained by September 80, 2004, After termination of is Latter Agresment, the Partlos shall be released from any and all further obligations to each othor, ‘excopt the obligations of the Non—Disclosure Agreement between the Partios and thase contained in the confidentialty provisions set forth above shall not be affected by the tormination ofthis Lottor Agroemont. 8. Miscolanoous. (2)_ Notther Party Is an agent or pertner ofthe other Party, nor has authorlty to represent or bind the other Party as to any mattore, (5). Nefther Party may assign, dalogate and/or fransfer Its rights,interests or cbligations created under this Letter Agreemont to any other entty wihout the prior writen consentof the other Part, provided that ether Party may assign this Letter Agreement to any ently that directly or indireatly is contraing, controlled by, or undorcommon sontrol wth such Party.

Mr. Tom Moore Page 4 (6) This Leftor Agroement and the rights and responsibiitis of the Parties hereunder shall be subject to and construed in accordance with the laws of the state of Now York (USA). (¢) The Partles agree to comply with all appleable laws end regulations of relevant govemments or govermmental agencies with respect to the matters to be addreseed herein. If the above reflects your understanding of the nature and pertculers of our reletlonship, please so indicate by signing below. intersat ue Neme: * Pot Tite: President,Intelsat (Bermude}, Ltd. WiLDBLUE COMMUNICATIONS, INC.


Document Created: 2004-10-06 17:56:43
Document Modified: 2004-10-06 17:56:43
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