SpaceX License Mod Appeals May Face Steep Odds
Balance Group, Dish Network and Viasat lawsuits challenging the FCC's April SpaceX license modification (see 2104260077) are considered a long shot, experts told us. They cited an environmental law, among other reasons why the commission's ruling may be judicially upheld. The appellants didn't comment Thursday.
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If there's no ceiling for National Environmental Policy Act, NEPA will be used as “a legal weapon” to delay or forestall competition as operators argue for environmental assessments or challenge the assessments, said Space Law and Policy Solutions’ Michael Listner. He said the appeals could create expensive environmental regulation problems for all satellite operators if the U.S. Court of Appeals for the D.C. Circuit buys in. He said the FCC excluded satellites from NEPA requirements and has environmental rules in the form of orbital debris regulations. The FCC didn't comment this past week.
Vermont Law environmental law professor Pat Parenteau said NEPA's territorial reach has been a frequent subject of litigation, and courts generally feel it doesn't apply outside U.S. boundaries, so the global commons or outer space “would be a difficult argument.” He said courts generally presume what regulatory agencies have done is correct and within their authority, except if the petitioners can point to significant impacts the agency failed to consider.
Agencies generally win about 70% of appeals of their decisions, emailed George Washington University administrative law professor Richard Pierce. The track record varies by agency and that overall percentage “went way down” during the Trump administration, he noted.
Federal appellate courts generally are deferential to agency decisions, due to the Administrative Procedure Act standard of review, said George Mason administrative law assistant professor Jennifer Mascott. She said Viasat's protection petition for review points to the company challenging the SpaceX order on several grounds subject to distinct standards of review, including a challenge to factual support behind the order and its consistency with law.
The notices of appeal and Viasat's protection petition for review last week (see here, here, here and here, in Pacer, consolidated docket 21-1123) raise an array of issues. Viasat said it faces such harms as risk of collision with debris and competitive injury “from SpaceX’s use of its environmentally irresponsible constellation to compete directly with Viasat in the market for satellite broadband services.” Balance said the order erred in not requiring an environmental impact statement or environmental assessment, and fell short of meeting even minimum review standards for the FCC’s core threshold responsibilities that must be addressed before approving a major satellite network mod.
Dish said the FCC “ignored unrebutted expert studies ... that the Starlink system as modified would significantly exceed the applicable power limits adopted by the FCC for the 12 GHz band.” The company said that interferes with Dish's direct broadcast satellite service.
SpaceX, which didn't comment, filed a motion Wednesday in the consolidated docket. It seeks to intervene in defense of the order, which lets it relocate more than 2,800 planned satellites to a lower orbit.