Standing, ITU Deference Among Major Issues in SpaceX Second-Gen Appeal

The judges also questioned Dish Network -- challenging the second-generation approval (see 2301060004) (consolidated dockets 22-1337 and 23-1001) -- about whether its appeal is really an indirect attack on FCC licensing rules, which would then need to be brought up outside the challenge to the SpaceX licensing.

In trying to address light pollution, ISDA "has a vested interest" in ensuring the satellites applied for and launched comply with the law, space lawyer Charles Mudd, representing the group, said in response to questions about its legal standing. Judge Neomi Rao seemed skeptical about there being a link between the harms alleged and the FCC's not doing a National Environmental Policy Act (NEPA) analysis of SpaceX's plans.

Mudd said the appellant ISDA doesn't need to show certainty about significant environmental effects from the 7,500 Starlink satellites the FCC approved in 2022 (see 2212010052), just that there may be significant effects -- something the evidence clearly shows, he said. The Administrative Procedure Act "requires something more than just a recitation of the arguments and saying 'we decide this way.' It needs to give that reasoned analysis," Mudd said.

Dish isn't questioning ITU limits or the FCC application of them, but the agency's seeming to ignore evidence that points to SpaceX violating those limits, said Steptoe's Pantelis Michalopoulos, representing appellant Dish. Since Dish can't go to the ITU itself and raise concerns or appeal a finding, it faces an unconstitutional subdelegation of agency authority, he said.

Rao questioned whether an argument that the FCC had impermissibly subdelegated authority to the ITU is inherently a challenge of FCC rules. FCC lawyer James Carr said Dish asked the FCC to raise the issue with the ITU, and the FCC hasn’t responded to Dish’s request.

Carr said the commission is likely waiting to see what the ITU will do with the SpaceX compliance filing. The answer raised an eyebrow with Judge Douglas Ginsburg as he questioned the logic of sitting on an allegation that would point to noncompliance while the ITU is going through the verification of compliance.

Carr and the judges went back and forth about when, if ever, the FCC would do more digging than just defer to the ITU’s certification. Carr said the commission's incorporation of the ITU certification process is designed to prevent long delays and keep the process moving.

Deferring to the ITU’s certification is reasonable as long as there is a backup process, which in this case was the ITU’s subsequent verification, said Carr. He said if Dish is correct that there’s a problem with SpaceX’s certification, even if SpaceX has already started operations, the ITU will make an unfavorable finding, those space operations will be at the company’s own risk, and it will have to reconfigure its operations. Carr said that making SpaceX grapple with Dish's study claiming the second-gen system would violate ITU rules imposes additional requirements on SpaceX, which goes beyond the scope of agency rules.

Judge Michelle Childs asked whether the FCC has no duty to look at information that would undermine an ITU certification. Carr said that the agency's only duty is to follow its experience that might make it question showings from an operator, but that it doesn't look at third-party studies and reports.

The FCC's second-gen approval found no evidence there would be a significant environmental effect, so the agency didn't need to address whether the effects of space activities are within the scope of NEPA, said FCC lawyer Rachel Proctor May. If it turns out the activities would have significant environmental effects, the FCC has multiple mitigation tools it can use, such as enforcing conditions on the second-gen authorization or even revoking the license, she said. "I don't think anyone thinks that would happen here, but it is an option," she said.

Dish's "real beef" is with the FCC rulemaking that adopted the ITU certification and verification methodology, and Dish arguments that it's not indirectly attacking that rules regime still boils down to indirect attacks, said Akin Gump's Pratik Shah, representing intervenor SpaceX.