Attachment Motion to Strike

This document pretains to SES-LFS-20051123-01634 for License to use Foreign Satellite (earth) on a Satellite Earth Station filing.

IBFS_SESLFS2005112301634_479937

Before the S Federal Communications Commission Washington, D.C. 20554 In the Matter of ) Telenor Satellite, nc. )) File No. SES—LFS—20050930—01352 File No. SES—AMD—20051111—01564 Application for TitleII Blanket License ) to Operate Mobile Earth Terminals with ) Inmarsat 4F2 at 52.75°W ) ) Telenor Satellte, Ic. ) File No. TRC—214—20051005—00395 ) Application for Section 214 Authorization ) to Operate Mobile Earth Terminals with ) Tnmarsat4F2 at 52.75°W oPPosITION To MOTION To STRIKE Mobile Satellite Ventures Subsidiary LLC (*MSV") herebyfiles this Oppositionto the "Motion to Strike" filed by Telenor Satellite, Inc. ("Telenor") on December 7, 2005 in connection with the above—referenced applications." Telenor seeks to strike portions of MSV‘s "Petition to Hold in Abeyance or Grant with Conditions" the above—referenced applications," which have been kept confidential purstant to the terms ofthe Mexico City Memorandum of Understanding ("Mexico City MoU®), an international agreement among the five administrations ‘ See Telenor Satelite, Ic., Motion to Strike Portions ofthe MSV Petition, File Nos. SES—LES— 20050930—01352; SES—AMD—20051 1 1—01564; TTC—214—20051005—00395 (filed Dec. 7, 2005) (‘Telenor Motion"). * See MobilSatellite Ventures Subsidiary LLC, Petition to Hold in Abeyance or Grant with Conditions, File Nos. SES—LFS—20050930—01352; SES—AMD—2005 1 111—01564; TTC—214— 20051005—00395 (filed November 23, 2005) (*MSYPetition"). Both confidential and public versions of the Petition were filed with the Commission.

that Hcense L band operators serving North America."_ As discussed herein, the Bureau should deny the Motion because () Telenor has no right to access these confidential materials and (i) Telenor‘s interests would not be prejudiced by the Commission‘s consideration ofthese confidential materials, since Inmarsat Ventures Limited ("Inmarsat") has access to the materials and is an active participant in the proceeding in support of Telenor‘s applications. Background MSVPerition. On November 23, 2005, MSV filed a "Petition to Hold in Abeyance or Grant with Conditions" the above—referenced applications filed by Telenor to operate terminals with an uncoordinated Inmarsat—4 L band satellite. In the Petition, MSV made reference to the Mexico City MoU, a framework agreement executed in 1996 by the five administrations that Hicense L band systems serving North America. Under the Mexico City MoU, the five North American L band operators are each assigned certain frequencies to use on their specific satelltes. The Mexico City MoU provides that the agreement, and certain related materials,are confidential to the parties and operators." Accordingly, MSV sought confidential treatment of those portions of its Petition (the "Redacted Materials") addressing the Mexico City MoU and related materials. Telenor Request. On November 28, 2005, Telenor contacted MSV to request access to the Redacted Materials. Counsel for MSV informed Telenor that MSV was not atliberty to * See Memorandum ofUnderstandingfor the Intersystem Coordination ofCertain Geostationary Mobile Satellite Systems Operating in the Bands 1525—1544/1545—1559 MHz and 1626.5— 1645.5/1646.5—1660.5 MH (1996) ("Mexico City MoU"). * Mexico City MoU; see also COMSAT Corporation et. al, Memorandum Opinion, Order and Authorization, 16 FCC Red 21661, 9 111 (2001) (*COMSAT Order") (‘The Mexico City Agreement and related coordination documents, such as minutes ofcoordination meetings, are considered confidential.")

provide such access. MSV suggested that Telenor contact the Commission directly to obtain assistance. See Telenor Motion, Declaration of Keith H. Fagan. Telenor Motion. On December 7, 2005, Telenor filed a "Motion to Strike," arguing that that () without access to the Redacted Materials, it cannot fashion an effective response to MSV‘s Petition (elenor Motion at 1—2); (i) the Administrative Procedures Act (*APA") and the Due Process Clause guarantee access to the Redacted Materials (Zeleror Motion at 2); and (ii) in the absence of such access, the Commission must strike the Redacted Materials from the record (Zelenor Motion at 3). Discussion L. TELENOR HAS NO RIGHT TO ACCESS THE REDACTED MATERIALS Telenor claims that it has a right to access the Redacted Materials to the extent necessary to effectively respond to the arguments raised by MSV. Telenor Motion at 2. Telenor‘s sole support for this claim is a quote from a Commission decision broadly stating that the APA and the Due Process Clause "generally entile parties in administrative proceedings to have access to the documents necessary for effective participation in those proceedings."" The Commission, however, has made clear that in narrow circumstances, competing policy objectives may require the Commission to limit a party‘s access to confidential materials. Tellingly, the only case cited by Telenor establishes this point® and Telenor itself suggests that a protective agreement — 5 Telenor Motion at 2 (quoting In the Matter of Open Network Architecture Tarifs ofBell Operating Companies, 10 FCC Red 1619 at 1 14 (1995) ("ONA TariffOrder")) (emphasis added). * ONA TariffOrder at 9| 14 (1993) (denying MCI‘s claim that ts rights were violated by the Commission‘s decision to restrict access to confidential materials, and finding that "the Commission must reach its own determination ofthe relative weight to be accorded the need for disclosure and the need to protect confidentiality, under applicable federal statutes and regulations").

which would necessarily restrict Telenor‘s access to the Redacted Materials — would be an appropriate option in the instant proceeding. Telenor Morion, Declaration ofKeith H. Fagan. The Freedom of Information Act ("FOLA®) affirmatively grants the Commission the right to withhold certain materials — including materials that address sensitive matters of foreign relations, administration bargaining positions, and interational coordination — from public inspection." Pursuant to FOTA, the Commission already has afforded confidential status to the Mexico City MoU and related documents.® Further, under FOIA, the Commission may restrict access to confidental documents even if those documents would assist a party in prosecuting its interests before the Commission; the applicability ofthe FOIA exemptions is not dependent on the particular circumstances of a FOTA requester or ts litigation or other needs." Noris the Commission required to ignore the Redacted Materials because Telenor cannot access them. Telenor‘s attempts to prove otherwise are unavailing. Telenor first cites U.S. Lines, Inc. v. Federal Maritime Commission, in which the D.C. Circuit overturned a Federal Maritime Decision which relied upon certain "reliable data reposing in the files ofthe Commission® that the Commission had excluded from the record without justification.. Critically, however, this data was not subject to an international agreement requiring that it be kept confidential, but was apparently withheld as a matter of administrative convenience. As such, ULS. Lines has no bearing on whether the Commission may consider the Redacted Materials in the instant proceeding. Next, Telenor cites the Commission‘s 2001 COMSAF Order " See 5 U.S.C. §552; 47 C.ER. §0.487. * See COMSAT Order, 16 FCC Red 21661, at § 111 (2001) ("The Mexico City Agreement and related coordination documents, such as minutes of coordination meetings, are considered confidential."); see also Robert J. Butler, 6 FCC Red 5414, at1 17 (1991). * See Robert J. Butler; see also Reporters Committeefor Freedom ofthe Press v. Deparment of Justice, 109 S. Ct. 1468, 1480 (1989); North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir. 1989). ‘* U.$ Lines v. Federal Maritime Commission, 548 F.2d 519 (D.C. Cir. 1978).

granting Inmarsat access to the U.S. market. In that order, however, contrary to Telenor‘s contention, the Commission did not ignore the confidential information submitted by MSV in the course ofthe underlying proceeding, but simply chose not to credit that information after reviewing it fully. If anything, the COMSAT Order establishes the Commission‘s authority to review confidential material even ifaccess is not granted toall parties to the relevant proceeding. It TELENOR‘SINTERESTS WOULD NOT BE PREJUDICED BY THE COMMISSION‘S CONSIDERATION OF THE REDACTED MATERIALS Although it is clear that Telenor has no legal right to the Redacted Materials, it is also worth noting that Telenor‘s interests are not prejudiced by the materials remaining undisclosed, since Inmarsat, which does have access to the non—redacted Petition, is an active participant in this proceeding."" Telenor can safely rely on Inmarsat, the entity that provides the space segment ofthe service proposed by Telenor, to address the issues presented in the Redacted Material. Inmarsat has a strong incentive to vigorously prosccute Telenor‘s application and respond to MSVs claims in the Redacted Materials, as Snmorsst worlt beughthom Peleror‘s provision of service in the U.S., and the Redacted Materials pertain entirely to Inmarsat‘s failure to abide by its obligations under the Mexico City MoU, Under these circumstances, it is unlikely that Telenor could provide any relevant information with respect to the Redacted Materials that Inmarsat has not already provided."" "‘ See Inmarsat Ventures Limited, Response, File Nos. SES—LFS—20050930—01352; SES—AMD— 2005111 1—01564; TTC—214—20051005—00395 (Dec. 7, 2005). ‘* As noted above, the Commission need not afford Telenor access to the Redacted Materials — ither to comply with the APA or to protect Telenor‘s interests. However, should the Commission determine that it cannot consider the Redacted Materials without disclosing those materials to Teleno, disclosure pursuantto a protective order would be preferable tostiking the Redacted Materials from the record.

Conclusion Forthe foregoing reasons, MSV respectfully requests that the Commission deny the Telenor "Motion to Strike:" Respectfully submitted, sEyxyys. Bruce D. Jacobs palal Tennifer A. Manner David S. Konczal Vie President, Regulatory Affairs Jarrett S. Taubman" MOBILE SATELLITE VENTURES PILLSBURY WINTHROP SUBSIDIARY LLC SHAW PMTTMAN LLP 10802 Parkridge Boulevard 2300 N Street, NW Reston, Virginia 20191 Washington, DC 20037—1128 (703) 390—2700 (202) 663—3000 *Adnite in 07. Nt adnino i DCSeperinl ty mente orthe DC Dated: December 19, 2005

CERTIFICATE OF SERVICE 1, Sylvia A. Davis, a secretary with the law firm ofPillsbury Winthrop Shaw Pitman LLP, herebycertify that on this 19® day ofDecember 2005, served a true copy of the foregoing by first—class United States mail, postige prepaid, upon the following: Roderick Poter® Gardner Foster® Intertional Bureau Inerntional Buresu FederalCommunicatins Commission Pederal Communications Commission 445 12" Sveeu, S.W 445 12" SSW Washingion, DC 20554 Washington, DC 20554 James Balt Cassandra Thomas* Interational Buresu Interational Bureau Federal Communications Commission FederalCommunicatins Commission 445 12° Stveet SW 445 12" Stree, SW Washingion, DC 20554 Washington, DC 20554 Karl Kensinger® Fem Jarmulack® Interational Bores International Buresu FederalCommunications Commission FederalCommunications Commission 445 12° Steeu, S.W 445 12° Steat, SW Washingion, DC 20584 Washington, DC 20554 RobertNelsont Howard Grboft® Interational Baresu Interational Bureau FederalCommunications Commission FederalCommunications Commision 445 12° Steet S.W. 445 12" Stree, $\W. Washingion, DC 20554 Washington, DC 20554 Andres Kelly* Scott Kotler® Internatioal Bures International Bureau Federal Communications Commission Federal Communications Commision 445 12 Steat, SW 445 12° Steet, SW Washington, DC 20554 Washingion, DC 20854 Stephen Duall® Keit H. Fagan International Buresu 1001 Wooton Pariway Federl Communications Commission Rockvlle, MD 20852 445 12Stooy, SW Washington, DC 20554 CounselforTeleor Satelite, . DiaeJ. Comel John PJanka Vice President, Govermment Aftiis Jefttey A. Marks Inmars, o. Latham & Watkins LLP 1100 Wilson Blvd, Suite 1428 555 Hleventh Stent, NW. Artingion, VA 2209 Sue 1000 Washingion, DC 20004 1 a Syivia A. Davis *By Hand Delivery


Document Created: 2006-01-05 15:15:02
Document Modified: 2006-01-05 15:15:02
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