Attachment redacted

redacted

REQUEST submitted by PanAmSat

redacted

2008-09-15

This document pretains to SAT-STA-20080911-00187 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2008091100187_665409

.”. FI LED/ACCEPTED 1776 K STREET NW Jennifer D. Hindin DC 20006 September 15,’2008 WASHINGTON, PHONE 202.719.7000 SEP 1 52008 202.719.4975 jhindin@wileyrein.com FAX 202.719.7049 FederalCommunicationsCommission I ’ Office of the Secretary 7925 JONES BRANCH DRIVE BY HAND DELIVERY MrLEAN, VA 22102 PHONE 703.905.2800 FAX 703.905.2820 Ms. Marlene H. Dortch, Secretary Federal Coinmunications Commission 445 32th Street, S.W. www. w i l e y r e i n .corn Washington, D.C. 20554 Re: REDACTED - FOR PUBLIC INSPECTION PanAniSat Licensee Corp. Request for Confidential Treatment, File Xo. SAT-STA-200S0911-00187, Call Sign S2704 Dear Ms. Dortch: By its attorneys, PanAmSat Licensee Corp. (“PanAinSat”) respectfully requests that, pursuant to Sections 0.457 and 0.459 of the Commission’s rules, 47 C.F.R. $6 0.457 and 0.459, the Commission withhold from public inspection and accord I ‘ confidential treatment to an amendment to an agreement regarding the Intelsat 5 (formerly PAS-9) satellite (Call Sign S2704), which is being filed in both redacted and un-redacted fonn with a copy of this letter. This agreement contains commercially sensitive information that falls within Exemption 4 of the Freedom of Infonnation Act (“FOIA”). See 5 U.S.C. Q 552(b)(4); 47 C.F.R. Q 0.457(d). Exemption 4 pennits parties to withhold from public information “trade secrets and coinmercial 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 Natioiial Parks aiid Coiiseivation 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.2d 871,879-80 (D.C. Cir. 1992), cei? deiiied, 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, PanAmSat hereby submits the following :

Septeinber 15,2008 Page 2 (I) /dei.lt$catioii of Specific hfoi-mation for Wliicli Coiijdential Treatment is Sought (Sectioiz 0.4jP(b)(l)): PanAmSat seeks confidential treatment for the enclosed Amendment $3 to the February 14, 2002 agreement between PanAinSat Corporation (now known as lntelsat Corporation) and Arab Saiellite , , Communications Organization (“A4RABSAT”).’ This amendment relates to PanAmSat’s continued operation of the Inielsat 5 satellite at the 26.15” E.L. orbital location. As explained in the pending application for Special Temporary y , ~ 5 is cun-ently licensed to operate at 26.15” E.L.3 At this orbital A u t l i ~ i - ~ tIntelsat location, PanAmSat has been leasing C-band capacity to ARABSAT. The amendment extends the agreement between PanAmSat and ARABSAT through the end of 2008. The amendment contains commercially sensitive infomation that falls within Exemption 4 of FOIA. (2) Descriylioii of Circunistaiices Giving Rise to Subiiiissio~i(Section 0.459@)(2)): PanAmSat submits this agreement in connection with its application, for Special Temporary Authority to continue to operate the Intelsat 5 satellite’s C- band payload and Ku-band Telemetry, Tracking and Command (“TT&C”) frequencies at 26.1 5” E.L. (3) Explanation of tlie Degree to IVlicli the I17foi-mation is Conzinercial or Fiiiaiicial, 01‘ Coiltailis a Trade Secret or Is Privileged (Section 0.459@)(3)): The amendment contains sensitive commercial and financial infonnation that competitors could use to PanAmSat’s disadvantage. The courts have given the tenns “com~nercial”and “financial,” as used in Section 552(b)(4), their ordinah meanings. See Board of Trnde v. Coinmodity Futures Trading Comn ’n, 627 F.2d 392,403 & n.78 (D.C. Cir. 1980). The Commission has broadly defined commercial information, stating that “‘[c]o~nmercial’is broader than infonnation regarding basic commercial operations, such as sales and profits; it includes infomation about work perfonned for the purpose of conducting a business’s commercial operations.” Southern Compaizy Request for Waiver of Section 90.629 ~ 1 A~iicndinents#I and #2 and the February 14, 2002 agreement were previously submitted to the FCC under a request for confidential treatment. 2 See PanAniSat Licensee Corp., Request for Special Temporary Authority, File No. SAT-STA-20080911-00187 (filed Sept. 11, 2008). 3 See Policy Branch Iiforiiiafion; Actions Taken, Report No. SAT-00408, File No. SAT-MOD-20061 01 8-00123 (Dec. 15,2006) (Public Notice).

September 15,2008 Page 3 of die Coiniiiissioii’s Rules, hlemoranduin Opinion and Order,14 FCC Rcd 1851, 1560 (1 998) (citing Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1953)). The amendment to the agreement with ARABSAT contains coininercial infoiiiiation regarding the continued operation of Intelsat 5 at 26.1 5” E.L. The I ” infonnation contained i n this ag-eement meets both definitions of “confidential.” First, a decision not to treat this infonnation as confidential could affect the Commission’s ability to obtain necessary infonnation in the future. Second, disclosure of this infonnation likely ivill cause substantial haim to the competitive positions of PanAmSat and ARABSAT. (4) Explanation ofthe Degree to 11’liich the Iiforimtioiz Conceriis a Service that is Subject to Coiiipetitioii (Section 0.459@)(4)): Substantial competition exists in the telecom~nunicationssatellite industry. Other large players in the geostationary satellite service market include Eutelsat, SES Ainericoin and Telesat. The presence of these large competitors makes imperative the confidential treatment of sensitive coininercial infonn ation. (5) Explanation of How Disc1osui.e of the hifoniiation Could Result in Subsfuiitial Coiiipetitive Haiw (Section 0.459@)(5)): Release of the amendment could have a significant impact on PanAmSat’s commercial operations. If business partners/customers or competitors had access to this information, it could negatively affect PanAmSat’s future negotiations with potential and existing business partners/customers. Specifically, business partners/customers could use the infonnation gleaned from the agreement to negotiate inore favorable tenns in their own service or capacity agreements. Competitors could use this information to better compete against PanAmSat. Thus, it is “virtually axiomatic” that the infoimation qualifies for withholding under Exemption 4 of FOIA, see A~ational Purlis aiid Coiisen1ation Ass’n v. Kleppe, 547 F.2d 673, 684 (D.C. Cir., 1976), and under Sections 0.457(d)(2) and 0.459@). (6) Ideiitiflcatioii of Aiiy A4easui-es Taken to Prevent Uiinuthorized Disclosure (Section 0.459@)(6)): None of this infonnation is provided to the public, and PanAinSat does not provide this infonnation to third parties except pursuant to agreements to maintain confidentiality. (7) Ideiitificatioiz of Wliether the Iiiforination is Available to die Public and the Exteizt of Aiiy Previous Disclosure of the Iiifoimatioiz to T1zii.d Parties (Section - 7 I. - -- m -”

September 15, 2008 Page 4 0.459@)(7)): PanAmSat has not made this agreement available to the public and has not disclosed this ageeii~entto any third parties. I (8) Jiislificatioii ofPei-iod Dui-ii7g TVl'iiclz /he Subiiiiftiiig Party .-3ssertis that llze J f a / e r i n lShould ,Vat be .4liailable for Public Disc/osul*e (Secfioii 0.459@)(8)): Pai~AmSatrespectfully requests that the Com~nission\~itIiholdthis agreement from I' public inspection indefinitely. On balance, the need to protect PanAinSat from competitive Iiann as a result of disclosure of this agreement outweighs any benefit of public disclosure which, in the ordinary course of business, would not otherwise occur. Accordingly, for the foregoi~~greasons, PanAmSat respectfully requests that the infom~ationcontajned in its amendment to its agreement with ARABSAT be kept confidentjal and be withheld from public inspection at a11 times. Please contact the undersigned with any questions. Thank you for your assistance. Sincerely, Couizselfor PaiiAi.~iSutLiceiisee Coi-p.

, RED.4CTED - FOR PUBLlC INSPECTION

JED.4CTED - FOR PUBLJC INSPECTJON I :e rhccuted this Agrccnert as ofthc date first above . h . M S A T SATELLITE INTELSAT GL09AL SALES AND COhfMUNiCkTIOXS ORGhh'IZATl IdAFXETWG, LIbllTED Title: F r c E i f t n t L CEO


Document Created: 2008-09-18 13:12:03
Document Modified: 2008-09-18 13:12:03
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