The Federal Communications Commission this week urged a court to back the FCC’s approval of SpaceX Starlink satellite launches against a lawsuit filed by Viasat and Dish.
With oral arguments scheduled for December 3, final briefs were filed on Tuesday by the FCC, Viasat, Dish, and SpaceX. Judges at the US Court of Appeals for the District of Columbia Circuit previously rejected Viasat’s motion for a stay that would have halted SpaceX’s ongoing launches of low-Earth-orbit (LEO) satellites pending the resolution of the lawsuit. Judges found that Viasat failed to show that it is likely to win its case alleging that the FCC improperly approved the satellite launches. Judges said at the time that Viasat did not meet “the stringent requirements for a stay pending court review” but granted a motion to expedite the appeal.
The FCC said in its new brief that the “commission reasonably granted SpaceX’s request to modify the orbital altitude of 2,824 of its Starlink satellites, which the commission concluded would serve the public interest by improving broadband access in underserved areas and reducing the potential to generate orbital debris. Neither Dish’s arguments regarding the potential for interference nor the criticisms by Viasat and the Balance Group of the commission’s review of environmental issues have merit.” (The Balance Group was apparently founded last year and said in a court document that it “is a membership organization that represents… astronomers and other scientists concerned about light pollution and other environmental impacts of satellite constellations.”)
The FCC has given SpaceX several approvals of satellite launches for a total of nearly 12,000 satellites. This lawsuit challenges a license modification granted in April 2021 that lowered the altitude of 2,824 satellites from 1,100-1,300 km to 540-570 km. Viasat said this license change that it wants the court to vacate constitutes SpaceX’s “final authorization to deploy a specific tranche of 2,824 low-earth orbit satellites.”
FCC: Courts must be “deferential” to agency
The FCC said that, under the “deferential” standard used by courts, judges must uphold agency decisions as long as the agency “has reasonably considered the relevant issues and reasonably explained the decision” and articulates a “rational connection between the facts found and the choice made.” In this case, the FCC said it reasonably concluded “that SpaceX’s satellites will not cause unacceptable interference to other operators.”
Viasat provides slower, higher-latency home-Internet service from geostationary satellites and faces a competitive threat from Starlink. The company alleged that the FCC failed to comply with the National Environmental Policy Act (NEPA) because it did not conduct an environmental assessment. The FCC’s brief said that “further review is required only where the commission concludes that their potential effects on the environment may be significant” and that “this standard was not met.”
For example, the FCC said it “reasonably concluded that the record did not show that effects from the deposit of alumina and other particulates as a result of the re-entry of the SpaceX satellites authorized by the order might be ‘significant.'” The FCC also said it “previously assessed the risk of SpaceX debris falling to Earth as part of the review of SpaceX’s orbital debris plan, and it was not required to re-assess the same issue” in this case. Similarly, the FCC said it did not need to re-assess “the risk that SpaceX satellites will generate debris in orbit” because of that previous review.
“No further review” of impact on night sky
One controversial problem with SpaceX satellites is their effect on astronomers and the night sky. The FCC said:
The commission reasonably concluded that no further review of SpaceX’s effects on astronomy and the night sky was necessary. The record showed that SpaceX had engaged in efforts to mitigate those effects and was working with the astronomy community to make additional progress. The studies on which Viasat and the Balance Group rely discuss effects on the night sky from a host of sources; they do not undermine the commission’s conclusion that the record did not show that the SpaceX satellites at issue may have significant effects.
The FCC also said it did not have to “review the environmental effects of emissions resulting from satellite launches because the Federal Aviation Administration―the agency that licenses such launches―had already conducted an environmental assessment of SpaceX launches.”
SpaceX supported the FCC’s case in its own brief, of course. On the question of environmental review, SpaceX said, “It cannot be the case that unsubstantiated allegations of any speculative chance of environmental impact are enough to compel an environmental assessment—least of all where, as here, the agency has already promulgated a categorical exclusion covering the activity.”
The FCC had found that SpaceX’s license change qualified for a categorical exclusion for “actions that normally do not have a significant effect on the human environment,” meaning a review isn’t necessary except in “extraordinary circumstances.”