TerreStar Petition t

PETITION submitted by U.S. Department of Justice and U.S. Department of Homeland Security

Petition to Adopt Conditions

2009-12-22

This document pretains to SES-AMD-20070508-00582 for Amended Filing on a Satellite Earth Station filing.

IBFS_SESAMD2007050800582_790998

AGREEMENT This AGREEMENT (“Agreement”) is made as of the Effective Date by and between TerreStar Corporation, a Delaware corporation, TerreStar Networks Inc., a Delaware corporation, and all of their Affiliates and subsidiaries (collectively “TerreStar”); on the one hand, and the U.S. Department of Justice (“DOJ”) and the U.S. Department of Homeland Security (“DHS”), on the other hand. (DOJ and DHS are referred to collectively as “the Government Parties,” and all of the Parties to this Agreement are referred to collectively as the “Parties.”) RECITALS WHEREAS, U.S. communications systems are essential to the ability of the U.S. government to fulfill its responsibilities to the public to preserve the national security of the United States, to enforce the laws, and to maintain the safety of the public; WHEREAS, the U.S. government has an obligation to the public to ensure that U.S. communications and related information are secure in order to preserve the national security of the United States, protect the privacy of U.S. persons and to enforce the laws of the United States; WHEREAS, it is critical to the well-being of the nation and its citizens to maintain the viability, integrity, and security of the communication systems of the United States (see, e.g., Executive Order 13231, Critical Infrastructure Protection in the Information Age, Presidential Decision Directive 63, Critical Infrastructure Protection, and Presidential Homeland Security Directive / HSPD-7, Critical Infrastructure Identification, Prioritization, and Protection); WHEREAS, protection of Classified and Sensitive Information is also critical to U.S. national security; WHEREAS, TerreStar Networks Inc. has filed applications with the Federal Communications Commission to license Mobile Earth Terminals (METs) and to provide Ancillary Terrestrial Component (ATC) service, and a petition seeking to permit TerreStar Networks Inc. to have indirect foreign equity and voting interests above 25 percent; WHEREAS, TerreStar plans to construct and operate an integrated satellite/terrestrial mobile communications network using one or more geostationary satellites and two redundant, satellite gateways in Allan Park, Ontario, Canada, and North Las Vegas, Nevada, United States. It intends to use this network to provide mobile communications services to independent distributors who will in turn distribute such service to individual customers and may also in the future distribute such services to its own customers; WHEREAS, TerreStar’s proposed service will enable users to send and receive data, voice, or other communications to and from mobile terminals from anywhere within the United States, and elsewhere; WHEREAS, Domestic Communications sent and received via TerreStar’s proposed service other than Domestic Communications carried via terrestrial facilities will be routed by TerreStar NSA 1

TerreStar’s network from mobile terminals within the United States to its TerreStar-1 satellite, which is licensed by Canada, and through one of the two gateway earth stations, one of which is in the United States and the other of which is in Canada; WHEREAS, it is critical to the law enforcement, national security, and public safety interests of the United States government that such Domestic Communications, and any related Call-Associated Data, Transactional Data, or Subscriber Information are made available pursuant to Lawful U.S. Process, including but not limited to the conduct of a real-time lawfully authorized Electronic Surveillance, within the United States in a timely, secure, and reliable manner; WHEREAS, the cooperation and assistance of TerreStar is necessary to ensure the above-mentioned critical interests, and to facilitate lawful access within the United States to certain information; NOW THEREFORE, the Parties are entering into this Agreement to address certain U.S. national security, law enforcement, and public safety concerns with respect to the provision or facilitation of its proposed services in the United States. ARTICLE 1: DEFINITION OF TERMS As used in this Agreement: 1.1 “Affiliate” means any entity that TerreStar owns or Controls. 1.2 “Call-Associated Data” or “CAD” means any information relating to a communication or relating to the sender or recipient of that communication and includes, without limitation, subscriber identification, called party number, calling party number, start time, end time, call duration, feature invocation and deactivation, feature interaction, registration information, user location, diverted to number, conference party numbers, post cut-through dual-tone multifrequency (dialed digit extraction), in-band and out-of-band signaling, party add, drop and hold, and any other call-identifying information, as defined in 47 U.S.C. § 1001(2). 1.3 “Classified Information” shall have the meaning indicated in Executive Order 12958, as amended by Executive Order 13292, or any successor executive order, or the Atomic Energy Act of 1954, or any statute that succeeds or amends the Atomic Energy Act of 1954. 1.4 “Control” means the power, direct or indirect, whether or not exercised, and whether or not exercised or exercisable through the ownership of a majority or a dominant minority of the total outstanding voting securities of an entity, or by proxy voting, contractual arrangements, or other means, to determine, direct, or decide matters affecting an entity or facility; in particular, but without limitation, to determine, direct, take, reach or cause decisions regarding: (a) the sale, lease, mortgage, pledge, or other transfer of any or all of the principal assets of the entity, whether or not in the ordinary course of business; (b) the dissolution of the entity; TerreStar NSA 2

(c) the closing and/or relocation of the production or research and development facilities of the entity; (d) the termination or non-fulfillment of contracts of the entity; (e) the amendment of the articles of incorporation or constituent agreement of the entity with respect to the matters described in Section 1.4(a) through (d); or (f) any obligations under this Agreement. 1.5 “Customer Proprietary Network Information” or “CPNI” is defined in 47 U.S.C. § 222(h)(1). 1.6 “De facto” and “de jure” control have the meanings provided in 47 C.F.R. § 1.2110. 1.7 “DHS” means the U.S. Department of Homeland Security. 1.8 “DOJ” means the U.S. Department of Justice. 1.9 “Domestic Communications” means (a) Wire Communications or Electronic Communications (whether stored or not) originating at one U.S. location and terminating at another U.S. location, and (b) the U.S. portion of a Wire Communication or Electronic Communication (whether stored or not) that originates from or terminates in the United States. 1.10 “Domestic Communications Infrastructure” means (a) transmission, switching, bridging and routing equipment (including software and upgrades) used by or on behalf of TerreStar to provide, process, direct, control, supervise or manage Domestic Communications; (b) facilities and equipment used by or on behalf of TerreStar that are physically located in the United States; and (c) facilities used by or on behalf of TerreStar to control the equipment described in (a) and (b) above. Domestic Communications Infrastructure does not include equipment or facilities used by service providers other than TerreStar or its Affiliates that are: (1) interconnecting communications providers; or (2) providers of services or content that are (A) accessible using the communications services of TerreStar or its Affiliates, and (B) available in substantially similar form and on commercially reasonable terms through communications services of companies other than TerreStar or its Affiliates. The phrase “on behalf of” as used in this Section does not include entities with which TerreStar or any of its Affiliates has contracted for peering, interconnection, roaming, long distance, resale, or distribution of TerreStar Service. TerreStar NSA 3


Document Created: 2009-12-22 11:17:17
Document Modified: 2009-12-22 11:17:17
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