Attachment request

request

REQUEST submitted by EchoStar

request

2005-05-11

This document pretains to SAT-STA-20050203-00018 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2005020300018_434804

ST E P T O E &_1 o H N S O N LLP ATTORNEYS AT LAW Pantelis Michalopoulos 202.429.6494 pmichalo@steptoe.com el 202.429.3000 . I ( ,. 1 ” ‘I I steptoe.com February 4,2005 RECEIVED BY HAND DELIVERY FEB - 4 2005 Marlene H. Dortch csderal CommunicationsCommission Secretary Wk8 Of seC~&Y Federal Communications Commission The Portals 455 12th Street, S.W. Washington, D.C. 20554 Re: Request for Blanket Authority to Operate 1,000,000 Earth Stations to Receive DBS Programming from the Canadian BSS orbital slot at 129O W.L. and Request for Special Temporary Authority To Move EchoStar 5 to 129O W.L. and to and Conduct Telemetry, Tracking and Command Operations in order to Relocate EchoStar 5 to this Orbital Location; File Nos. SES-LFS-20050203-00133 and SES-STA- 20050203-00018 REQUEST FOR CONFIDENTIAL TREATMENT Dear Ms. Dortch: EchoStar Satellite L.L.C. (“EchoStar”), pursuant to the provisions of Sections 0.457 and 0.459 of the Commission’s Rules governing submission of confidential materials, 47 C.F.R. $9 0.457,0.459, respectfully requests that the unredacted Satellite Agreement between Ciel Satellite Communications Inc. (“Ciel”) and EchoStar Satellite L.L.C. (dated May 14,2004) (“Agreement”) be afforded confidential treatment and not be placed in the Commission’s public files of the above-referenced applications. EchoStar has already supplied the Commission with a public, redacted version of the Agreement, and this request for confidential treatment relates only to the portion of the Agreement that was redacted from the public version.’ . i : ()l‘\l‘( y l - - - 4 ‘-’Both th&pkbhk, kedacted ersion, which was filed in the proceedings referenced above, and the confidential unredacted ver ‘on of the Agreement are included with this request for confidential treatment. I I - I WASH IN CTON PHOENIX LOS ANCELES LONDON BRUSSELS

Marlene H. Dortch STEPTOE &JOHNSONLIP February 4,2005 Page 2 The redacted portions of the Agreement address further commercial arrangements that have not yet been completed and fbture obligations of the parties related to the use of the 129”W.L. orbital location. That material qualifies as “commercial or financial information” that “would customarily be guarded from competitors” regardless of whether or not such materials are protected from disclosure by a privilege. See 47 C.F.R. 0 0.457(d); Critical Mass Energy Project v. NRC, 975 F.2d 871,879 (D.C. Cir. 1992) (“[Wle conclude that financial or commercial information provided to the Government on a voluntary basis is ‘confidential’ for the purpose of Exemption 4 if it is of a kind that would customarily not be released to the public by the person from whom it was obtained.”); see also DIRECTV, Inc.; Request for Special Temporary Authority to Relocate DIRECTV 3 to 82” W.L. and to Conduct Telemetry, Tracking and Command (‘‘7’TdiC’yOperationsfor an Interim Period, File No. SAT-STA-20030903- 00300 (application in which the FCC accepted redacted contract as part of record). As an initial matter, most businesses do not publicly reveal supply contracts that enable them to provide their end product in the market. Thus, almost all of the specific terms in such an agreement would be the type of commercial information that “would not customarily be released to the public” and should be treated as confidential. Companies routinely guard information about their future plans or operations from their competitors. Finally the fact the redacted information in the Agreement is the type of information that would “would customarily be guarded from competitors” is demonstrated by the No Publicity and Confidentiality provisions of the Agreement (Sections E.5 and E.8) and the fact that the parties considered the agreement confidential and proprietary. Thus, the Commission should treat the redacted information as confidential under Section 0.457(d). In addition, the redacted portions of the Agreement also contain highly sensitive information that if disclosed could place both EchoStar and Ciel at a competitive disadvantage, including specific information regarding future actions and obligations. There are a number of entities who would stand to benefit competitively from any knowledge of the redacted commercial terms included in the Agreement. In support of this request, and pursuant to 47 C.F.R. 5 0.459(b), EchoStar hereby states as follows: 1. The information for which confidential treatment is requested includes information on further commercial arrangements that have not yet been completed and kture obligations of the parties related to the use of the 129”W.L. orbital location. As noted above, EchoStar has already filed a redacted version of the Agreement, and this request for confidential treatment pertains only to those provisions of the Agreement that are redacted from the public version. 2. The redacted information is being submitted as part of Echostar’s application for blanket authority to operate 1,000,000 earth stations to receive DBS service from the Canadian BSS orbital location at 129” W.L. and its request for special

Marlene H. Dortch STEPTOE aJoH N S O N LLP February 4,2005 Page 3 temporary authority to relocate its EchoStar 5 satellite to the Canadian BSS orbital location at 129” W.L. 3. The redacted portions of the Agreement contain sensitive commercial information. Specifically, the redacted information addresses further commercial arrangements that have not yet been completed and future obligations regarding the use of the 129”W.L. orbital location. This information is commercial information that has not been made public and is not available to Echostar’s and Ciel’s competitors. 4. The redacted information pertains to the provision of multichannel video programming. The multichannel video programming distribution (“MVPD”) market is a competitive market. See, e.g.,In the Matter of Annual Assessment in the Market of the Delivery of Video Programming, MB Docket No. 04-227, FCC 05-13 (Released: Feb. 4,2005). EchoStar faces competition primarily from DirecTV, a larger digital broadcast satellite provider, and cable television providers. These competitors could potentially use the redacted information to gain an advantage in the MVPD market. 5. Disclosure of the redacted information could result in substantial competitive harm to EchoStar and Ciel. The redacted information regarding future operations at the 129”W.L. orbital location would give Echostar’s and Ciel’s competitors advanced notice of future plans that have not previously been made public. This would allow these competitors to take steps to counter whatever advantage EchoStar and Ciel may gain in the market based on the future operations in the 129” W.L. orbital location. In addition, the redacted information regarding further commercial arrangements that have not yet been completed could provide Echostar’s and Ciel’s competitors with the ability to negatively impact these further commercial arrangements. 6. EchoStar takes significant measures to ensure that this confidential information is not disclosed to the public. 7. The redacted material for which non-disclosure is sought is not available to the public. 8. EchoStar requests that the redacted materials be withheld from disclosure for an indefinite period. Disclosure of this information at any time could jeopardize the competitive positions of EchoStar and Ciel. 9. Finally, EchoStar notes that a denial of its request that this information be kept confidential would impair the Commission’s ability to obtain this type of voluntarily disclosed information in the future. The ability of a government agency to continually obtain confidential information was behind the legislative purpose in developing exemptions from the Freedom of Information Act. See Critical Mass Energy Project v. NRC, 975 F.2d 871,878 (D.C. Cir. 1992)

Marlene H. Dortch ST E PTO E a J o H N s o N LLP February 4,2005 Page 4 (“Where, however, the information is provided to the Government voluntarily, the presumption is that [the Government’s] interest will be threatened by disclosure as the persons whose confidences have been betrayed will, in all likelihood, refuse further cooperation.”). The US.Court of Appeals for the D.C. Circuit has recognized a “private interest in preserving the confidentiality of information that is provided the Government on a voluntary basis.” Id. at 879. The Commission should extend a similar recognition to the redacted materials. EchoStar requests that the Commission return the Agreement if its request for confidentiality is denied. See 47 C.F.R. $0.459(e). To the extent that the Commission concludes that the disclosure of some or all of the redacted terms should be made available to the parties to this proceeding, EchoStar would be willing to discuss the terms of a Protective Order and provide a somewhat less redacted version of the Agreement for review by outside counsel for those parties. Respectfully submitted, David K. Moskowitz Executive Vice President and General Counsel Philip L. Malet EchoStar Satellite L.L.C. Steptoe & Johnson LLP 9601 South Meridian Boulevard 1330 Connecticut Ave., N.W. Englewood, CO 801 12 Washington, DC 20036 (303) 723-1000 (202) 429-3000 Counselfor EchoStar Satellite L.L. C. Enclosures

CONFIDENTIAL

Uay-19-54 Il:50ea Frnm-Osier Horkin Harcourt t6132352867 *14-2004 m:aJ ECHOSTnR :. t. SATELLITE AGREEMENT : '!i :. . ' i AM). I -wmmpf-v Confidential Not for Public Inspection

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MPY-10-04 Il:llu FrwFOslrr Hoikin Harcourt 1-48 1 P . UOT/OOD F-130 RW-14-28Bd 81;s lZULMlM r.e EJldSfic Snlellite LL.C. Far: 303-723-1699 PO.3ax 6655 (far d A c d mail) EngJcwwd. CaIorado 80155 9601 S. Mcridian Blvb. (f"ovmUgbt courier) Eltgrcufbad,COIOrada 801 12 6 C ~ ~ t tu o l L-tcllkaw YJO GnD1 Confidential Not for Public Inspection i

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AND. 1 C O ~ M a b l I ~ ~ Public Version Confidential Information Redacted I

i li e 2 Public Version -4 Confidential Information Redacted i i i

J i. i It 0 3 0 Public Version Confidential Information Redacted

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i , . e 5 Public Version Confidential Infomation F Redacted i i i i i:

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EI , TT wsa es sutem en anal a Ascnle ressshdl suttane 6 o2 + David K. Moskawitz, Executive Vice President, General Counsel and Secretary (soame address andfax number) «4. of Limfteon Lisbility, Nefther Party shall be Hable to the other (or any third party) / ;under this Agreement for any special, incldental, indirect or consequential damages or for loss of busmes,mmmmfit&mdadviwddflumibifityofmyafflnmwng _Publicity. Except for ( disclosures required by Jaw, rule or regulation; (#) (f : discloswesbkalwcmmmm«yaumwifiumddmlambyfichommvmwd Foq States regulatory authorities that are necessary for each Party to fulli1 its obligations hereunder, °; which for the avoidance of doubt shall remain subject to Clei‘s obligation imder Section A(1) 10 |[| > secure EchoStar‘s prior approval for certain disclosures and EchoStar‘s obligation under Section /; : B() to secure Clel‘s prior approval for certain disclosures; and (ii}) disclosures to a Party‘s [ : bankers, lawyers and investors, who have signed appropriate non—disclosure agreements and who * h:vnbouafideneedtokmwsuch information in connection with the business activities ofthe applicable Party, during the tenm of this Agreement and for a period ofthree (3) years thereafter | . ! neither Party may rclease items of publicity of any kind relating to the work performed or mm IHECLE on T9 e Nt Cw ue vve ne contempleted to be performed hereunder without the prior writen consent of the other Party, se eee m en e such consentnot to be unressonably withheald or delayed. Ti ComplHanceLaw. The Parties agree that in carrying out their respective activities /: hemmduanthcxracuomandthoseofthe Parties‘ respective employees or agents shall be in o0 compliance with all applicable laws and regulations. re d se C hetrsew 7. Tam. This Agreement shall commence on the date first set forth above and, M Bese aTha c 8. Confidemiaity, The Parties contempiate the exchinge of certsin confidential and ° :1 proprietary information desling with the subject matier of this Agreement. Each Party ngrees to : :: maintain all such information disclosed to it for purposes ofthis Agreement in striet confidence, ‘~—; using the same degres of care, but not less than reasonable care, to prevent disclosure of such . . information as such Party uses in respect of its own information of like importance. The Parties 1 shail use such information solely for the purposes of this Agreement and not for any other ; purpose. mxeqmmmtomunmnmcconfidmwfly of such information shall not extend to: & (8) information which is in the public domain at the time ofits disclosure or which subsequently > .; comes into the public domain without violation of an obligetion of confidence assumed| <| ;i hereundér; (b) information received from a third party without violation of an cbligation of| . ! confidence to the disclosing party; (c) Informarion which the recipient party can show so bave| . : N . 7 ty cisicyss. Confidentia] Information Redacted TC 3 W f “i

. . I 8 Public Version Confidential Information Redacted


Document Created: 2005-03-16 14:47:04
Document Modified: 2005-03-16 14:47:04
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