[00:00:00] Speaker 00:
Please number 21-1123 et al.

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Biasat, Inc.

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A Balance versus Federal Communications Commission.

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Mr. J for the A Balance, Biasat, Inc.

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and the Balance Group.

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Amy Galakoulos for the A Balance Dish Network Corporation.

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Mr. Carr for the Apoly, Issues Raised by Dish Network.

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Ms.

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May for the Apoly, Issues Raised by Biasat.

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Mr. Shaw for the Intervener.

[00:00:26] Speaker 05:
Morning, Your Honors.

[00:00:26] Speaker 05:
May I please the court?

[00:00:28] Speaker 05:
I'm William Jay on behalf of Viasat and the Balance Group.

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As the FCC itself said, SpaceX's mega constellation is unprecedented, and so are its foreseeable environmental consequences.

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Most significantly, the Illumina that will be produced by burning up in the atmosphere all 10,000 satellites that will be launched and then deorbited over 15 years.

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Only a short time into that 15-year term, Starlink is already causing injury to, among others, individual astronomers like our declarant, Dr. Baddili.

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The FCC does not even dispute that Dr. Baddili would have standing in his own right.

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His membership in the balance group is sufficient, all by itself, to give this court jurisdiction to review the FCC's decision.

[00:01:09] Speaker 07:
And on review... Can I ask you about that?

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What evidence in the record is there about how one becomes a member of the balance group?

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What evidence in the record is there about whether members pay dues?

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What evidence in the record is there about how the balance group is funded?

[00:01:31] Speaker 05:
Okay, so I didn't hear the second part of your question.

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I heard how you become a member and how the balance group is funded.

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And I could not hear the middle part of it.

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Whether members pay dues.

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Whether members pay dues.

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So let me address those in turn.

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So the balance group has members and the declaration attached to our reply brief establishes that not only does it have members now, it has had members for well before this appeal was filed.

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A person becomes a member of the balance group by enrolling online, it does not charge dues.

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That's not required for it to be a membership association.

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There are many examples of membership associations that have

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that are voluntary associations that don't charge their members dues, but that are, like the balance group, a forum for individuals to come together to advocate as a group.

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And no one has disputed that the issues here are germane to the balance group's mission.

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The only question that the FCC has raised is whether it is a membership association

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in the traditional sense, and it is.

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Is there any evidence in the record about how officers of the balance group are elected or selected?

[00:02:51] Speaker 05:
There is not again I don't think that that's ever been part of the test for a genuine membership association and I would point you to the first circuits decision in students for fair admissions, which in considering this membership association, as of the time that it was formed, sorry, as of the time that the case was filed in November.

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I believe a 2014.

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The members had no right to vote and did not pay dues, and as Judge Lynch's opinion for the First Circuit explains, that's never been a requirement for a membership association, a true association of individuals and other groups that come together to advocate collectively.

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where some of this court's cases have gotten into the question of the ability to vote or dues have been when organizations that are not membership associations have come before the court and said that they should be treated like membership associations.

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And then this court has looked at indicia of membership, but it's never done that with an organization like the balance group, which has individual members.

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And again, that's in a sworn declaration.

[00:03:57] Speaker 07:
You don't think that the Sorenson case is similar to this case?

[00:04:02] Speaker 05:
I don't, Your Honor, because in the Sorenson case, the association, in addition to being funded entirely by the other petitioner, this court concluded that it couldn't verify that there was a single member of the association that would have individual standing.

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The only person who'd been identified as a member

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was the one individual who was the director of the association, and this court had serious questions based on the showing in the opening brief about whether that individual would even have standing in her own right.

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That's not the case here with Dr. Baddili, or for that matter with Dr. Galozzi.

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Dr. Baddili's individual standing, as I noted, isn't something that the commission disputes at all.

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And of course, we think that Viasat has standing as well, but the simplest way for this court to reach the merits is to hold that Dr. Pedoli has individual standing.

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He's a member of the balance group.

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And therefore, the balance group has associational standing.

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Unless the court has further questions on standing, I think those are the key points I want to emphasize.

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And I would like to turn to the merits.

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And I'd like to begin, if I can, with Illumina.

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Can I just ask, remind me that doctor is an astronomer?

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Dr. Baddili is an astronomer and a physicist, that's right.

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So let's assume, if we agree with you that he has standing and therefore the organization has standing, it would make sense that the organization

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can argue about what you call light pollution, which is the harm for the astronomers.

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But why would they get to argue about orbital debris, say, which is the harm to Viasat?

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This is something that this court has decided in a number of cases and the short one sentence version is because the agency action approving the satellite launches and deployments is causing an injury.

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And if the agency went through the NEPA process, there's a substantial possibility that it would change its mind.

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The Wild Earth Guardians case from 2003.

[00:06:28] Speaker 08:
Sorry, what's your best case for that?

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So there's a line of cases that begins with Wild Earth Guardians in 2013, and I believe it's page 713 of that decision.

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Then there are a pair of cases, both called Sierra Club versus FERC decided in 2016.

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both decided the same day.

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I'm referring to the one specifically authored by Judge Millett, in which there is a further discussion of why it is that in a NEPA case, you're allowed to, for example, if your injury is caused by air pollution, you are also allowed to argue that the EIS or NEPA documents were deficient for failure to do other things like climate change.

[00:07:09] Speaker 08:
I mean, I understand why you might think of it that way.

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The agency action is,

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allowing is not doing the EIS.

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And if that causes abandonment of the project, the injury is redressed.

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But on the other hand, it does feel a little bit like standing being dispensed in gross to the extent, you know, the astronomers are arguing about the space junk and the satellite person is arguing about the light pollution.

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I don't think it's like the standing dispensed in gross cases, you know, like Lewis versus Casey, where they were a whole bunch of different forms of injunctive relief being sought and only one of them remedying the plaintiff's injury.

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And the reason for that is that the deficiency

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is the failure to require environmental review before proceeding with the approval of the Third Amendment.

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And all of the deficiencies, all of the reasons why environmental review was required

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are all fair game because they all lead to the same point and EA should have been required and the agency should have made a proper NEPA determination before allowing SpaceX to launch the satellites that are causing the injury and halting the approval while that environmental review is conducted will redress the injury.

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And in addition to the cases I've cited, I would just point to the American Rivers case, which we've cited in our brief, which likewise goes through the standing analysis in a NEPA case and says that basically traceability and redressability follow pretty naturally once you establish that the agency should have carried out the NEPA process.

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And there's a substantial possibility that had it done what it was supposed to do under NEPA, it would have come to a different conclusion.

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because that means that had it done it right, done the NEPA process right, you wouldn't have been injured, you wouldn't be being injured today.

[00:09:13] Speaker 08:
And just one more variation on this theme.

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I take it you would give the same answer if I were to think that the injury with regard to Illumina or the launch emissions

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Suppose I think that Lujan has some geographic nexus requirement for standing and you don't satisfy that.

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You wouldn't satisfy that for standing purposes.

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You would say the same thing that, well, that's fine.

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You've shown standing by other means.

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And once you do that, you could argue about any pollution impact completely divorced from the plaintiff's individual circumstance.

[00:09:59] Speaker 05:
Well, I think you could argue about any environmental consideration that should have been considered in deciding whether to require environmental review before granting this order.

[00:10:09] Speaker 08:
I don't think you could go beyond that, but I do agree that... Well, I mean, you're arguing about launch emissions and let's assume that none of these scientists are within 500 miles of the launch.

[00:10:25] Speaker 08:
Yes.

[00:10:26] Speaker 05:
The answer to your question is yes, that once standing is established to challenge the failure to require an EA, then all of the reasons why an EA is required, even if some of those might be reasons that the declarants don't have individual standing to litigate by themselves in an action that implicated only those considerations, that doesn't matter because it's all of a piece here.

[00:10:53] Speaker 05:
And the injury is the

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order and the the redress is to set aside the order.

[00:11:00] Speaker 08:
Okay, I got it.

[00:11:01] Speaker 08:
Thanks.

[00:11:03] Speaker 05:
So unless there are further questions on standing, I would like to turn to Illumina and I see that my I'm over my time.

[00:11:09] Speaker 05:
So with the court's permission, you can you can

[00:11:13] Speaker 05:
Thank you, your honor.

[00:11:14] Speaker 05:
I appreciate that.

[00:11:15] Speaker 05:
So Illumina, the FCC decided in a very cursory fashion, page 59 of the appendix, really just one operative sentence on the environmental consequences of burning Illumina in the environment.

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in the atmosphere.

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What it did not sufficiently grapple with is the fact that the consequences of a pollutant like Illumina can far outstrip whatever quantity is actually put into the atmosphere.

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The evidence that's in the record demonstrates that, so for example, just one molecule of a radical like

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HOX or CLOX can destroy 100,000 molecules of ozone.

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So the knock-on effects of this type of pollution are enormous.

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That's why, and I really would just point to pages 469 and 478 of the appendix as the best discussions of why the presence of Illumina in substantial quantities in the stratosphere poses a real risk to the ozone layer.

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The FCC dealt with none of that.

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In one conclusory sentence on page 59, it said that it thought Viasat hadn't demonstrated that there may be a substantial environmental impact.

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As this court said in the American Bird Conservancy case, the May standard is not a very high one, because after all, what you're looking at, you're not even conducting the environmental review yet,

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you're looking only at whether over the lifetime of the federal action, which here is 15 years, the combustion of 10,000 satellites, each of them containing 230 pounds of aluminum in the atmosphere, may have a substantial environmental impact.

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And I understand that there is a dispute about what the exact quantity of aluminum or alumina would be.

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And I understand that the scientists have had a vigorous debate about what the impact on ozone would

[00:13:15] Speaker 07:
He said 230 pounds.

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Do you mean 230 kilograms?

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Or maybe I misheard you.

[00:13:24] Speaker 05:
Let's see.

[00:13:25] Speaker 05:
I have 230 pounds.

[00:13:29] Speaker 07:
I'm sure Mr. I may misunderstand, but I'm sorry.

[00:13:35] Speaker 07:
Go ahead.

[00:13:37] Speaker 05:
So that results in an unprecedented quantity being deposited directly into the stratosphere.

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And our submission is that that at least required some form of environmental review at the lowest level, which is the preparation of an environmental assessment before the commission could say without consistent with the APA that there would be no significant environmental impact.

[00:14:02] Speaker 04:
Mr. Jay, I know that the commission kind of punted on the question of whether NEPA's scope even covers some of these alleged environmental harms.

[00:14:19] Speaker 04:
But in some ways, it does seem like it's the most law-based reason to deny your petition on the merits.

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I can see NEPA, which refers to the human environment,

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covering the launch, covering falling debris that comes to Earth, probably covering Illumina, maybe covering light pollution.

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But the idea that orbital debris that is in space and stays in space is part of the human environment seems to me a tough sell.

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And so I wonder if you could

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Give me anything that you think could happen in space that would not be covered by NEPA.

[00:15:11] Speaker 05:
So let me point you first to where the CEQ's current regulation on this subject, which is 40 CFR 1508.1 Q1 Romanet 1.

[00:15:29] Speaker 05:
This is a relatively recent addition to the NEPA rules.

[00:15:33] Speaker 05:
It is something that I understand CEQ is taking another look at, which I'll just... Can you repeat it?

[00:15:37] Speaker 04:
Can you repeat it one more time, please?

[00:15:39] Speaker 05:
Of course.

[00:15:39] Speaker 05:
I'm sorry.

[00:15:40] Speaker 05:
It's 40 CFR 1508.1, which is the definitions provision of the NEPA regs.

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Q1

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Roman at one and what that provision get what that provision says is that I under the CEQ is current view NEPA does not reach matters with effects located entirely outside the jurisdiction of the United States entirely so that as your question recognized.

[00:16:08] Speaker 05:
There are many things that we've raised in our petition that absolutely have effects in what is indisputably the human environment, the stratosphere, the ground, the type of aesthetic effects that light pollution raises, which are squarely within NEPA.

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So I do think that there would be a question for the agency about if a petition raising orbital debris alone

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a sufficient basis for environmental review.

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The agency hasn't reached that question.

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This, I understand, is an issue on which the administration was sued when it changed these NEPA regulations, which we think is all the more reason why this court should not get out ahead of the agency and try to decide the scope of NEPA when, as your question recognized, the agency expressly declined to decide that any of the things that we raised were outside the scope of NEPA.

[00:17:05] Speaker 08:
True, but it is a question about the scope of the statute.

[00:17:12] Speaker 08:
And we do have a strong canon of construction that federal statutes don't apply extraterritorially.

[00:17:23] Speaker 08:
And if they don't apply, presumptively don't apply to Canada, presumptively they also don't apply on the moon or nearby orbit.

[00:17:32] Speaker 05:
No, I understand the analogy, Judge Katzis, but I think this court considered that in its decision in environmental defense fund in, I believe, 1994 on the question whether NEPA would apply to a federal action that was to take place exclusively in Antarctica.

[00:17:47] Speaker 08:
And it concluded that because- Yes, based on, I think it was the Ninth Circuit FTCA opinion that was unanimously reversed by the Supreme Court.

[00:17:58] Speaker 05:
No, I don't think that's that's fair Judge Katz.

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And if you look at part to a of that opinion, I believe you'll see that the discord does wreck does cite the Ninth Circuit decision and note the cert grant in that case.

[00:18:11] Speaker 05:
But it also it decides it's making a decision based on how NEPA operates.

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What does NEPA do?

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NEPA does not regulate action, it regulates government decision making.

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And the reasoning of that case was that the government decision making would take place in Washington DC and not in America.

[00:18:27] Speaker 08:
Which seems very hard to reconcile with.

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You can take either the touch and concern analysis in cases like Keeble or you can take the headquarters analysis in

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So, I mean, you're running up against a lot of extraterritoriality law there.

[00:18:49] Speaker 05:
No, respectfully, Judge Katz, I think that in decisions like RJR and Nabisco and similar cases, there's the two-part question whether the statute has an extraterritorial effect.

[00:19:05] Speaker 05:
We're not claiming that there's a plain statement in NEPA.

[00:19:07] Speaker 05:
We would look at this, obviously, as all the more reason for the agency.

[00:19:13] Speaker 08:
You're saying the focus of NEPA is the government decision-making which is here on Earth.

[00:19:19] Speaker 05:
I'm saying that that is the question that would have to be decided in order to answer this question.

[00:19:23] Speaker 05:
I think that is that that is something of which the administration more broadly and not just the Federal Communications Commission may well have views.

[00:19:30] Speaker 05:
I understand that is in the process of reconsidering many aspects of the 2020 NEPA rulemaking.

[00:19:37] Speaker 05:
And all the more reason for this court, you know, as the, as the Supreme Court said in the goosey, not to not to get out ahead of ahead of the agency and the executive branch on a subject like this, but ultimately all my favorite cases.

[00:19:54] Speaker 05:
They seem the right ones to cite here, Your Honor.

[00:20:00] Speaker 04:
Mr. Jay, even if NEPA reaches Antarctica, that seems closer to the phrase human environment than Mars does.

[00:20:11] Speaker 04:
So did I hear you to concede that orbital debris is not within NEPA's scope?

[00:20:18] Speaker 04:
I doubt you did that.

[00:20:19] Speaker 04:
So can you give me an example of something that happens in space

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that is not within NEPA scope or is your position that NEPA covers the universe?

[00:20:29] Speaker 05:
No, no, it's not that NEPA covers the universe.

[00:20:30] Speaker 05:
And I am absolutely certain that there are any number of effects that take place whose effects are sufficiently beyond the surly bounds of Earth that NEPA would not apply to them.

[00:20:46] Speaker 05:
But just to take the orbital debris in this case, remember that the light pollution, our light pollution argument.

[00:20:51] Speaker 04:
Mr. J, I know you said you can think of examples.

[00:20:54] Speaker 04:
It would be helpful to have one.

[00:20:56] Speaker 05:
But I just want to make sure I'm clear on the question judge Walker you're asking for a question for an example of something that would not apply that NEPA would not cover.

[00:21:04] Speaker 05:
Yes.

[00:21:05] Speaker 05:
I mean, so bracketing for a moment the NEPA regulates agency decision making and not and not the consequences of that decision making, which is the subject of my exchange with Judge Katz's.

[00:21:21] Speaker 05:
I think that something beyond Earth orbit that has no effect on Earth, I could easily see a mission to Mars not being subject to NEPA to the extent that it takes place entirely outside of Earth.

[00:21:38] Speaker 05:
And obviously there are launches, there are effects in the atmosphere as the rocket goes up.

[00:21:42] Speaker 04:
What if it affected the astronomer's view through a telescope of Mars?

[00:21:46] Speaker 04:
Would it then be within NEPA's coverage?

[00:21:52] Speaker 05:
Possibly, but let me distinguish that case from this one in a way that I hope will be helpful right because in this case, the light pollution argument is very closely tied to what is in low Earth orbit and are.

[00:22:03] Speaker 05:
Orbital debris argument is not distinct from it, but it is related to the light pollution argument because the cumulative effect of sky glow on Earth with biological effects on Earth is determined in part by all of the objects in low Earth orbit, which would include the debris that's generated

[00:22:25] Speaker 05:
when there's a collision.

[00:22:27] Speaker 05:
So I think that the nexus between our light pollution argument and the effects on the human environment.

[00:22:33] Speaker 04:
But the light pollution argument, I think you've argued, is distinct from the astronomer's complaint that when they look through their telescope, their view of certain bodies in space are going to be obscured in some way.

[00:22:48] Speaker 04:
Maybe I'm misunderstanding it.

[00:22:50] Speaker 05:
No, their, their study is is being interfered with that that's certainly true.

[00:22:56] Speaker 05:
One reason though that that has an effect a direct effect on the human environment is that one of the aspects of the environment of the astronomers study, especially at twilight.

[00:23:05] Speaker 05:
when it's important that the sky be as dark for the further study as possible, is threats to the Earth from incoming objects, like asteroids and so forth.

[00:23:17] Speaker 05:
I think you can see the direct connection between that and the human environment, whereas the observate.

[00:23:23] Speaker 05:
Look, I'm not saying definitively that the Hubble Space Telescope's observation of another galaxy could not possibly be within NEPA's scope, even though it is definitely interfered with by the

[00:23:35] Speaker 05:
by SpaceX's satellites, but I do think that that's for that's farther afield, literally.

[00:23:44] Speaker 04:
Okay, thank you.

[00:23:45] Speaker 05:
I mean, all of which to say right that you don't need to answer this question, not only because the agency has decided it, but because

[00:23:57] Speaker 05:
The sum and substance of our argument is that there are effects on the human environment right here on Earth's surface, or in the stratosphere, or in the ozone layer, all tightly within the scope of NEPA, and the aesthetic effects of light pollution in particular.

[00:24:12] Speaker 05:
Even if the scientists were just offended by being photobombed by satellites, as opposed to being unable to do their scientific work, the aesthetic effects are well within the scope of NEPA, and expressly recognized, and I think subsection E1 of the effects regulation.

[00:24:27] Speaker 05:
that the CEQ has.

[00:24:30] Speaker 07:
Given the time, why don't you just very briefly just touch on the merits other than what we've already discussed about the scope of the statute.

[00:24:42] Speaker 07:
Right.

[00:24:43] Speaker 05:
I had trouble hearing the question, Your Honor.

[00:24:45] Speaker 05:
The merits of?

[00:24:47] Speaker 07:
The merits of your NEPA argument.

[00:24:50] Speaker 07:
Why don't you just take a couple minutes to highlight the merits of your NEPA argument.

[00:24:56] Speaker 05:
I appreciate that, Your Honor.

[00:24:58] Speaker 05:
And I think you have my argument on Illumina for the most part, light pollution.

[00:25:04] Speaker 05:
There are just three quick points.

[00:25:07] Speaker 05:
One, the discussion about mitigation is kind of a red herring because the question is not whether the NEPA analysis can consider mitigation.

[00:25:14] Speaker 05:
The question is whether the harms have been mitigated and they have not.

[00:25:18] Speaker 05:
So the second point is on

[00:25:20] Speaker 05:
the actual satellites themselves, which have not been dimmed to a level where they would not be visible with the naked eye.

[00:25:28] Speaker 05:
We have put in extensive evidence on that.

[00:25:31] Speaker 05:
on that subject.

[00:25:33] Speaker 05:
And then third is that even if individual satellites might be dimmed over the course of the 15 year license term so that they couldn't be seen with the naked eye, but only with binoculars or only with scientific instruments.

[00:25:44] Speaker 05:
Even then, what the agency hasn't addressed is the cumulative effect of all of those satellites in orbit on Skyglow.

[00:25:51] Speaker 05:
And Skyglow itself is a distinct harm.

[00:25:54] Speaker 05:
It has biological effects.

[00:25:56] Speaker 05:
It has effects on scientific research, including, as I mentioned to Judge Walker, scientists' ability to spot threats to the planet, which are observations that are done at Twilight.

[00:26:06] Speaker 05:
Those are the key points on light pollution.

[00:26:08] Speaker 05:
And I don't want to tax the court's patients.

[00:26:10] Speaker 05:
But on orbital debris, I think you have our submission in the papers.

[00:26:15] Speaker 05:
And I really would just underscore that this is not just speculative, that the commission

[00:26:20] Speaker 05:
and the evidence that we put in the record have identified a really significant failure risk and that the impacts of a collision would be quite catastrophic.

[00:26:34] Speaker 08:
Can you just give me one or two sentences on why that risk is imminent?

[00:26:42] Speaker 05:
Sure.

[00:26:48] Speaker 05:
Give me one second on the page number.

[00:26:54] Speaker 05:
So page 894 of the appendix cites a study that estimates a 45.8% chance of a catastrophic collision within five years, 35% probability of catastrophic fragmentation over the same term.

[00:27:10] Speaker 05:
In cases that deal with hypotheticals, these are much higher percentages than I think the court is used to seeing in cases speculating about harm.

[00:27:21] Speaker 05:
And I would just underscore that what the FCC has said is, well, we will tell SpaceX to tell us that if they have three satellites in the course of a year that don't successfully de-orbit, we want to know about it.

[00:27:34] Speaker 05:
We submit that at that point, it will be too late.

[00:27:36] Speaker 05:
If there's a failure problem, the satellites will already have launched.

[00:27:40] Speaker 05:
And this is precisely why environmental review under NEPA is generally supposed to be done before the agency leaves, not after.

[00:27:47] Speaker 08:
But the action under review here is primarily lowering the altitude of the satellites, right?

[00:27:57] Speaker 08:
The 4,000 satellites are already up there.

[00:27:59] Speaker 05:
No, that's not correct.

[00:28:01] Speaker 08:
How many I thought there was just a small number of additional satellites, which would make the marginal risk attributable to this order low.

[00:28:09] Speaker 05:
So two things about that.

[00:28:10] Speaker 05:
I mean, first, the FCC agreed with us and not with SpaceX on the question of what is the baseline.

[00:28:16] Speaker 05:
The baseline is without, because without this order, they did not have authorization to operate any of these satellites in low Earth orbit.

[00:28:26] Speaker 05:
They said that the baseline is no satellites.

[00:28:29] Speaker 08:
And they said that.

[00:28:31] Speaker 08:
But they're already up there.

[00:28:32] Speaker 05:
And that's my second point, Your Honor.

[00:28:34] Speaker 05:
Actually, that's not quite right, that some satellites were authorized to operate at a higher altitude, but a majority were not.

[00:28:41] Speaker 05:
I mean, if you look at paragraph four of the commission's order, I think you will see a catalog of exactly how many satellites were previously authorized at a different altitude and how many were added by this order at the altitudes from 530 on up through different levels of low Earth orbit.

[00:29:00] Speaker 08:
I'm sorry, is, is, is there a differential risk on this point does it matter whether they are at the.

[00:29:08] Speaker 08:
I forgot the numbers the 1200 kilometers versus the 600 kilometers for purposes of this concern, just for orbital debris.

[00:29:18] Speaker 05:
I mean, I think the answer is that at the lower altitude, the orbital shell is more crowded so that if you take the number of satellites as a given and you compress them into an orbit, you know, with a, it's not a perfect circle, but you know, with a smaller radius, then the shell gets more crowded.

[00:29:37] Speaker 05:
I think that's really our point.

[00:29:39] Speaker 05:
And the reason why you should look at this order and at the total number authorized by this order is that just the addition of more satellites and the crowding of the orbital shell is what creates this risk of a catastrophic impact.

[00:29:55] Speaker 05:
Of course, that impact could be felt well beyond low Earth orbit.

[00:29:58] Speaker 05:
But as the Bolian Byers article that we cite says, a catastrophic collision could make low Earth orbit unusable by any

[00:30:08] Speaker 05:
So both the magnitude of the harm and the probabilities we think support environmental review.

[00:30:14] Speaker 05:
I'm sorry, Your Honor.

[00:30:15] Speaker 07:
All right, thank you, Judge Walker.

[00:30:17] Speaker 07:
Did you have any other questions, Judge Katz?

[00:30:20] Speaker 07:
All set.

[00:30:21] Speaker 07:
All right, we'll give you some time on rebuttal.

[00:30:23] Speaker 07:
Thank you, Your Honor.

[00:30:24] Speaker 07:
Let's hear for counsel for additional.

[00:30:30] Speaker 01:
Good morning.

[00:30:31] Speaker 01:
May it please the court, Pantelis Mykalopoulos, for this.

[00:30:35] Speaker 01:
This is not the usual case where the agency does the court.

[00:30:40] Speaker 01:
I may have been terse in my explanation, but I was not silent.

[00:30:45] Speaker 01:
Here the agency was silent and admits it.

[00:30:49] Speaker 01:
It refused to consider this is expert evidence.

[00:30:53] Speaker 01:
The studies showing that the SpaceX operation will exceed

[00:30:58] Speaker 01:
the applicable power limits and will degrade or jam the satellite television service offered today to some 23 million US households.

[00:31:08] Speaker 01:
Instead, the FCC says, I was duty bound by one of my rules to ignore that evidence.

[00:31:15] Speaker 01:
But that's wrong several times over, Your Honors.

[00:31:18] Speaker 01:
First of all, the rule on its face does not purport to prohibit the agency from considering additional evidence.

[00:31:28] Speaker 01:
Second, even if it did, there's no exception to reason decision-making for an agency following rules that purportedly contain such prohibitions.

[00:31:39] Speaker 01:
And then the FCC waived the very rule that it says it is bound by.

[00:31:46] Speaker 01:
This is the requirement of obtaining an ITU finding of no interference prior to initiation of service.

[00:31:53] Speaker 01:
Well, a rule cannot be sacrosanct and disposable at the same time.

[00:31:58] Speaker 01:
And then the waiver itself was not permissible.

[00:32:01] Speaker 01:
The agency said, we see no reason to revoke the previously granted waiver.

[00:32:07] Speaker 01:
Well, no reason not to is not reason enough under the APA.

[00:32:13] Speaker 01:
And then the FCC said, we can ignore this as evidence because we put our trust in the licensing process of the ITU.

[00:32:23] Speaker 01:
Of course, this makes no sense because the ITU process was waived for several years

[00:32:28] Speaker 01:
But it also makes no sense because the ITU itself, the foreign agency has said, we are not to be trusted always.

[00:32:38] Speaker 01:
The ITU said, sometimes our software cannot adequately model those non-geostationary systems.

[00:32:47] Speaker 01:
And in those cases, we expect you, the licensing administration, meaning the FCC, to indicate to us a problem exists

[00:32:57] Speaker 01:
and then to give us your own commitment that there will not be interference.

[00:33:01] Speaker 01:
What does the FCC say to that?

[00:33:03] Speaker 01:
It's buried in a footnote in note 16 of its brief and in jargon.

[00:33:09] Speaker 01:
But what it says is, well, we didn't indicate to the ITU that the problem exists.

[00:33:14] Speaker 01:
But of course, that's not the issue.

[00:33:17] Speaker 01:
The issue is not

[00:33:18] Speaker 01:
whether an indication of a problem has been made, but rather whether the problem exists.

[00:33:23] Speaker 01:
And the agency could not know because it had not considered the evidence.

[00:33:29] Speaker 01:
And then the FCC places all of its trust until a finding by the ITU is made several years on in the regulated entity itself.

[00:33:40] Speaker 01:
And the brief is candid about that.

[00:33:43] Speaker 01:
The FCC says, we rejected this claim of harmful interference.

[00:33:48] Speaker 01:
Why?

[00:33:49] Speaker 01:
on the basis, verbatim, of SpaceX's certification that its operations will not cause such interference, period.

[00:33:59] Speaker 01:
Nothing more.

[00:34:01] Speaker 07:
Its certification without- I have a question about all of that.

[00:34:07] Speaker 07:
What does it mean when the agency says, okay, we're waiving the ITU

[00:34:15] Speaker 07:
approval before you commence operations, but you are proceeding at your own risk.

[00:34:22] Speaker 07:
What does that mean?

[00:34:24] Speaker 01:
Yes.

[00:34:25] Speaker 01:
So what the agency said it means, your honor, is that SpaceX will have the incentive to do the right thing because of the purported Damocles sword of the ITU making a finding down the road.

[00:34:40] Speaker 01:
That's just not true.

[00:34:42] Speaker 01:
In fact, SpaceX will have the incentive to do the wrong thing during all those years before the ITU finding.

[00:34:50] Speaker 01:
It will have all the incentive to operate at high power to reap the benefits for its service of those high power operations.

[00:35:00] Speaker 01:
And then when the finding comes and assuming that the finding is that yes, there is interference.

[00:35:06] Speaker 01:
All it has to do is dial down the power.

[00:35:09] Speaker 01:
No harm, no foul for SpaceX.

[00:35:12] Speaker 01:
harm and foul for the 23 million satellite television households.

[00:35:18] Speaker 07:
I'm not understanding something.

[00:35:20] Speaker 07:
Let's suppose that they do proceed in that fashion, SpaceX does, and they operate at high power, and dish subscribers are interfered with, and their service goes out during the Super Bowl or something.

[00:35:42] Speaker 07:
Won't there be consequences for SpaceX if that were to happen, even if the ITU has not acted yet?

[00:35:52] Speaker 01:
It's very doubtful, Your Honor, unfortunately.

[00:35:53] Speaker 01:
First of all, any complaint we make to the FCC that our actual subscribers have been interfered with, they cannot watch their favorite programming, will be after the fact.

[00:36:07] Speaker 01:
So the harm will have been done.

[00:36:10] Speaker 01:
Secondly, the agency's logic here, both in its brief and in its order, suggests that the empirical, percipient evidence we will then offer will suffer the same fate as the expert evidence.

[00:36:35] Speaker 01:
we have already offered.

[00:36:37] Speaker 01:
So there's no guarantee that the FCC will not say, look, our rule prescribes what is enough.

[00:36:44] Speaker 01:
We're not going to look at that evidence.

[00:36:48] Speaker 07:
So let me, this is a very important point to me.

[00:36:51] Speaker 07:
I want to make sure I understand correctly.

[00:36:54] Speaker 07:
So are you saying that if you believe that there has been actual interference that was caused by space events,

[00:37:05] Speaker 07:
When you have expert testimony and evidence that would prove that SpaceX caused actual interference, that when the agency says proceed at your own risk, it means that the agency still wouldn't even consider your evidence.

[00:37:28] Speaker 07:
It would only consider what the ITU concludes.

[00:37:32] Speaker 01:
Yes, your honor.

[00:37:34] Speaker 01:
That's exactly the concern.

[00:37:36] Speaker 01:
And not only that's the concern, it's what has happened because we have already, as I will get to, offered that expert evidence, undisputed evidence on harmful interference.

[00:37:48] Speaker 01:
And so the only case that the FCC cites for this sufficiency of the certification of the regulated entity making the regulated entity judge and jury of its own case is global crossing.

[00:38:00] Speaker 01:
But there,

[00:38:01] Speaker 01:
This was a sufficient initial step, not the final and conclusive step for enforcing any FCC rule.

[00:38:11] Speaker 01:
And so this is, I hope you can see the globe.

[00:38:16] Speaker 01:
This is the system owned and operated by this.

[00:38:19] Speaker 01:
A few satellites stationary located at high altitudes above the equator.

[00:38:25] Speaker 01:
They provide direct to home satellite television to millions of households

[00:38:31] Speaker 01:
throughout the US.

[00:38:33] Speaker 01:
And here, I apologize for my clumsiness here.

[00:38:40] Speaker 01:
Just throw this away.

[00:38:41] Speaker 01:
This is an illustration of the SpaceX system.

[00:38:45] Speaker 01:
Many thousands of satellites swarming at lower altitudes, moving all the time.

[00:38:51] Speaker 01:
They are under an obligation to not cause harmful interference into satellite television.

[00:38:58] Speaker 01:
And to that end, the ITU has developed

[00:39:01] Speaker 01:
power limits, and the FCC has adopted those limits.

[00:39:05] Speaker 01:
That happened back in 2000.

[00:39:07] Speaker 01:
And I want to clarify something because the FCC, without due respect to Jim, has mudded the waters here.

[00:39:16] Speaker 01:
We have no quarrel with the standards themselves.

[00:39:20] Speaker 01:
The ITU developed them, the FCC looked at them, decided they made sense.

[00:39:25] Speaker 01:
We rely on those limits for our own protection.

[00:39:29] Speaker 01:
It is with the failure

[00:39:31] Speaker 01:
of the FCC to apply those limits below that we take exception.

[00:39:37] Speaker 01:
And so this is part of our evidence.

[00:39:40] Speaker 01:
And what it shows is that if you use the ITU software, but do not take into account, you do not set the actual location of the satellite television dishes, you ended up with one of those locations being off the shore of Greenland.

[00:39:59] Speaker 01:
And this matters.

[00:40:01] Speaker 01:
Because the calculation of power for purposes of the power limits depends on where the victim station is located.

[00:40:10] Speaker 01:
So here's what our expert engineer did.

[00:40:13] Speaker 01:
He used the ITU software.

[00:40:16] Speaker 01:
The FCC is wrong that we did not.

[00:40:21] Speaker 01:
And that is established at JA 177.

[00:40:25] Speaker 01:
But he used a function within the software that allows you to set the real world

[00:40:31] Speaker 01:
locations of the satellite television users.

[00:40:33] Speaker 01:
And once we did that, we concluded that there was excess over the power limits throughout the United States.

[00:40:45] Speaker 01:
But the FCC says my hands were tied by the rule.

[00:40:51] Speaker 01:
The problem is that this is not what the rule says.

[00:40:54] Speaker 01:
The rule says requires a certification by the regulated entity.

[00:40:59] Speaker 01:
and a finding by the ITU prior to the initiation of service.

[00:41:04] Speaker 01:
There's nothing that says and the FCC shall not consider any additional evidence.

[00:41:11] Speaker 01:
Now, the FCC will seize on a snippet from the rulemaking that promulgated the rule to the effect we don't want to duplicate the ITU's work.

[00:41:23] Speaker 01:
But the discussion there was about getting rid of the prior demonstration required of the applicant.

[00:41:31] Speaker 01:
It was not a discussion about receiving or not receiving evidence from people concerned about interference.

[00:41:39] Speaker 01:
And let's not duplicate.

[00:41:41] Speaker 01:
It does not mean let's not check.

[00:41:43] Speaker 01:
When I ask a junior lawyer to write a brief, I do not prohibit myself from revising it.

[00:41:51] Speaker 01:
But let's suppose that the rule

[00:41:53] Speaker 01:
was intended to tie the FCC's hands.

[00:41:57] Speaker 01:
You, Judge Wilkins, you wrote in Environmental Health Trust that when confronted with evidence that its current regulations are not adequate to solve a problem, the agency must offer more than conclusory statements in order to justify retaining

[00:42:20] Speaker 01:
those existing rules.

[00:42:21] Speaker 01:
And there's similarly no doubt under the precedent that rules may be challenged long after they leave the harbor of the rulemaking that enacted them as they applied in further commission action.

[00:42:36] Speaker 01:
So when SpaceX says that we're attempting a collateral attack on the 2017 rule, there was nothing, there was no reason to challenge the rule.

[00:42:48] Speaker 01:
because there was nothing wrong with it on its face.

[00:42:53] Speaker 01:
But there's much wrong with how the rule was applied below.

[00:42:58] Speaker 07:
Can I ask a question just to make sure I understand how the FCC would resolve an allegation of interference?

[00:43:11] Speaker 07:
So if

[00:43:20] Speaker 07:
If you have evidence that dish subscribers are having problems and it appears that there has been some sort of interference, what you're saying is that the FCC

[00:43:45] Speaker 07:
will not deem that to be significant, but the only thing that the FCC deems significant is if, based on the ITU's and engineers' testimony, they conclude that everything is within the power limits, right?

[00:44:09] Speaker 01:
This is the inescapable consequence of what they have argued, both in the order and in the brief

[00:44:15] Speaker 01:
And of course, Your Honor, as you know, they haven't started commercial service on a mass scale yet.

[00:44:20] Speaker 01:
So there's no empirical evidence yet of interference.

[00:44:23] Speaker 01:
What there is, we supply it.

[00:44:25] Speaker 07:
And this is expert, undisputed evidence that if you use the actual... But once the ITU does their study, it concludes that they're

[00:44:39] Speaker 07:
will be in appearance that they've exceeded the power limits, then SpaceX will have to stop operating, right?

[00:44:49] Speaker 01:
Either stop operating or dial down its power, the most likely outcome.

[00:44:54] Speaker 01:
But meanwhile, this will be years after.

[00:44:58] Speaker 01:
while SpaceX has been providing commercial service for years without any protection for the 23 million US.

[00:45:07] Speaker 07:
That's why I asked you what proceed at your own risk means.

[00:45:11] Speaker 07:
So let's suppose that in two years, IT finds that they are operating in excess of the power limits that are prescribed.

[00:45:28] Speaker 07:
Would they have to pay some sort of penalty for having operated for two years outside of those limits?

[00:45:36] Speaker 01:
Not that the record reflects.

[00:45:38] Speaker 01:
All that at your own risk means is there is that if the ITU were to come up with a finding that there is interference, they would have to dial down the power.

[00:45:49] Speaker 01:
They would not be able to continue operating at the same high power.

[00:45:54] Speaker 01:
But that's no harm, no foul for them.

[00:45:55] Speaker 01:
They've already reaped the benefit.

[00:45:58] Speaker 01:
that risk proceeding at your own risk means.

[00:46:02] Speaker 07:
And of course- Your client wouldn't have any sort of a claim for damages against him?

[00:46:09] Speaker 01:
No.

[00:46:09] Speaker 01:
And by the way, this is not a common carrier service where a complaint and possible damages would be appropriate.

[00:46:17] Speaker 01:
This is a non-common carrier service.

[00:46:20] Speaker 01:
And sorry, the record reflects no such opportunity.

[00:46:23] Speaker 01:
And then the FCC goes and waives the rule.

[00:46:26] Speaker 01:
the requirement of obtaining the at you finding prior to the initiation of service.

[00:46:32] Speaker 01:
Here's what the agency had said back in 2000 in its own words.

[00:46:38] Speaker 01:
It is imperative imperative that compliance with the power limits be verified during the licensing process.

[00:46:48] Speaker 01:
Now it has thrown this imperative out the window and it doesn't explain why it says

[00:46:56] Speaker 01:
We see no reason why we should revoke the previously granted waiver.

[00:47:03] Speaker 01:
That's all it says.

[00:47:03] Speaker 01:
It stops there.

[00:47:05] Speaker 01:
The problem is that AT&T in the comments and reply comments below had offered the agency such a reason.

[00:47:14] Speaker 01:
It has said the rationale, that's AT&T speaking, the rationale for the Bureau's 2019 waiver

[00:47:24] Speaker 01:
is not valid anymore.

[00:47:25] Speaker 01:
That rationale, and if you go to paragraph 28 of the 2019 first modification order, you will see that it was to expedite the start of operations of SpaceX.

[00:47:39] Speaker 01:
And AT&T said, this goal has been achieved.

[00:47:43] Speaker 01:
The operations have started.

[00:47:46] Speaker 01:
What does the FCC say to that?

[00:47:49] Speaker 01:
Nothing.

[00:47:51] Speaker 01:
This is the kind of intolerable muteness that Judge Leventhal has spoken about, and it will soon likely wreak a devastating effect on satellite television as SpaceX commences its commercial service on a mass scale, unless this court vacates the order to the very limited extent of the 12 gigahertz band, which is a minuscule portion, 3%,

[00:48:21] Speaker 01:
of the total spectrum, the thousands of megahertz, available to SpaceX.

[00:48:27] Speaker 04:
Mr. Michaelopoulos, why do you think AT&T is not here with you?

[00:48:34] Speaker 01:
That's a very good question, Your Honor.

[00:48:36] Speaker 01:
The easy and straightforward answer is that AT&T, which means, of course, Direct-TV, the other satellite carrier, has much less need

[00:48:50] Speaker 01:
of the 12 gigahertz band than we do.

[00:48:54] Speaker 01:
The reason for that is most of its satellites are in the KAA band.

[00:48:58] Speaker 01:
So it has some interest, enough interest to participate in the proceeding below, but almost all of its service now is in the KAA band, the different part of the spectrum.

[00:49:09] Speaker 08:
Thanks, that's helpful.

[00:49:13] Speaker 07:
All right, Judge Katzis, Judge Walton, any other questions?

[00:49:17] Speaker 07:
No.

[00:49:19] Speaker 07:
All right.

[00:49:20] Speaker 07:
Thank you, sir.

[00:49:22] Speaker 07:
Thank you.

[00:49:27] Speaker 07:
I believe now we're going to hear from Mr. Carr on behalf of the commission.

[00:49:36] Speaker 06:
Yes, good morning, your honor.

[00:49:38] Speaker 06:
May it please the court, my name is James Carr.

[00:49:41] Speaker 06:
I represent the Federal Communications Commission.

[00:49:44] Speaker 06:
I'll be addressing the issues raised by DISH Network and my colleague, Rachel Proctor-May, will be addressing the issues raised by Biasat and the Balance Group.

[00:49:55] Speaker 06:
I'd like to start by addressing the point that Judge Wilkins was making in his colloquy with Mr. Michelopoulos about actual interference and whether if actual interference were to be measured, the commission would have a different response.

[00:50:14] Speaker 06:
I think it's important to understand that when the commission conducted this application proceeding, at any time it's judging an application,

[00:50:25] Speaker 06:
It's measuring the potential for interference.

[00:50:30] Speaker 06:
There are no actual operations in place.

[00:50:33] Speaker 06:
And so it is, by definition, making some sort of a predictive judgment.

[00:50:39] Speaker 06:
The ITU software is designed this way, to make a predictive judgment about whether a proposed satellite system will cause harmful interference.

[00:50:51] Speaker 06:
That is, whether it will exceed the ITU's power limits.

[00:50:55] Speaker 06:
That's one thing.

[00:50:57] Speaker 06:
It's quite another matter.

[00:50:59] Speaker 06:
Once a system begins operating, if there is actual documented evidence that it is in excess of the ITU's power limits, then under the FCC's rules, that system is required to come into compliance with those limits.

[00:51:15] Speaker 06:
Otherwise, it will be causing harmful interference and it will be in violation of the rules.

[00:51:19] Speaker 06:
And the commission would take enforcement action.

[00:51:23] Speaker 06:
As Mr. Michelopoulos acknowledges, there is no empirical evidence at this point that there is any actual harmful interference.

[00:51:32] Speaker 06:
And it is the commission's belief based on its experience with the use of the ITU software that no actual harmful interference will occur.

[00:51:41] Speaker 06:
But if it does, the commission stands ready to take enforcement action.

[00:51:47] Speaker 06:
Thus far, the ITU software, which was developed over many years after consultation with

[00:51:53] Speaker 06:
number of engineers and experts and represents an international consensus.

[00:51:58] Speaker 06:
It's been in effect for five years.

[00:52:00] Speaker 06:
It's the best available predictor.

[00:52:02] Speaker 06:
of whether or not the system will comply with the ITU's limits.

[00:52:06] Speaker 06:
During those five years, more than 100 satellite systems have been reviewed by the ITU.

[00:52:13] Speaker 06:
And the commission is not aware of any instance in which the ITU issued a favorable finding based on the software that showed a system was in compliance.

[00:52:24] Speaker 06:
And it was later determined that a system was not in compliance, that it exceeded the ITU's power limits.

[00:52:32] Speaker 06:
the ITU's software has been effective predictor of compliance or non-compliance with the ITU's power limits.

[00:52:44] Speaker 06:
Now, if I could turn to, yes, I'm sorry.

[00:52:47] Speaker 08:
To what extent is the SpaceX constellation just

[00:52:54] Speaker 08:
different in kind from anything we've seen before?

[00:52:58] Speaker 08:
Just to me, just sounds fantastic.

[00:53:02] Speaker 08:
4,000 satellites up there.

[00:53:04] Speaker 08:
Is that something you, well beyond what you've dealt with before?

[00:53:13] Speaker 06:
It's a significant deployment.

[00:53:18] Speaker 06:
It's not entirely unique in the sense that I know there's some discussion in the reply brief about steerable beams.

[00:53:25] Speaker 06:
There are other systems with steerable beams.

[00:53:29] Speaker 06:
In terms of the size of the deployment, I'm sorry, Your Honor, go ahead.

[00:53:33] Speaker 08:
Oh no, so how comfortable are you extrapolating to something that seems a good bit larger, more complicated, potentially more troublesome?

[00:53:43] Speaker 06:
No, the ITU software was designed to deal with all sorts of satellite constellations, including ones this large.

[00:53:54] Speaker 06:
There are some non-geostationary satellite operators that have argued that

[00:54:05] Speaker 06:
the software should be revised because it actually overstates the potential for interference by these more complex systems.

[00:54:14] Speaker 06:
So there is a process by which the ITU considers whether to revise its software.

[00:54:21] Speaker 06:
And that's discussed in the circular that was cited in the, that is in the joint appendix,

[00:54:33] Speaker 06:
At 249 to 251 of the Joint Appendix, there's a circular by the ITU, and there's a discussion of the working party 4A.

[00:54:43] Speaker 06:
That's a group in the ITU that considers revisions to the software.

[00:54:50] Speaker 06:
That's done after holding various international meetings.

[00:54:53] Speaker 06:
There was a US delegation to the ITU that considers whether to make recommendations about making changes to the software,

[00:55:02] Speaker 06:
It's a complex process and it took years to develop the current software because these are very difficult technical issues.

[00:55:13] Speaker 06:
But there is a process and if DISH believes that the current software is not working the way it was intended to, it can actually go through the process, go to the US delegation to the ITU, explain its concerns, present a technical paper and if

[00:55:31] Speaker 06:
those parties agree they can get the ITU to revise its software.

[00:55:38] Speaker 06:
But at this point, the commission and the commission when it adopted its rules in 2017 made clear that it was going to rely on certification.

[00:55:49] Speaker 06:
by applicants that they were in compliance with the ITU's rules.

[00:55:53] Speaker 06:
And that certification was going to be based on the ITU software.

[00:55:57] Speaker 06:
The commission said it was going to require applicants to use the software to verify compliance.

[00:56:04] Speaker 06:
And basically what DISH asked the commission to do here was to go outside of its rules and its normal procedures to second guess the certification and to take a look at

[00:56:20] Speaker 06:
a different analysis that was not based on the ITU software and methodology.

[00:56:25] Speaker 06:
And basically second-guess SpaceX's certification and the ITU.

[00:56:33] Speaker 07:
You don't concede that what Dish did was essentially the same analysis that the ITU will do when they eventually get around to it.

[00:56:44] Speaker 06:
No, I don't concede that at all, Your Honor.

[00:56:46] Speaker 06:
And I think the,

[00:56:48] Speaker 06:
SpaceX itself acknowledges, if you go to the Joint Appendix, page 176, in its second interference study, it acknowledges it's doing something different from what the Radio Communication Bureau of the ITU would do.

[00:57:06] Speaker 06:
Unlike the previous study, this is in the first paragraph in that, the previous study being the first interference study,

[00:57:16] Speaker 06:
We do not rely on the recommendation of the ITU to use the worst case geometry algorithm as the ITU Radio Communication Bureau does.

[00:57:25] Speaker 06:
Let me explain what the worst case geometry algorithm is.

[00:57:29] Speaker 06:
And this explains why you have a measurement of power in Greenland.

[00:57:38] Speaker 06:
The worst case geometry algorithm

[00:57:41] Speaker 06:
is applied, is a methodology that's applied with the software, it identifies those areas where the proposed satellite system is expected to have the highest level of power emissions.

[00:57:55] Speaker 06:
So in this case, one of those areas was Greenland.

[00:57:59] Speaker 06:
And the theory behind the software is if you identify the highest levels, the areas where

[00:58:07] Speaker 06:
the system is projected to have the highest levels of emissions.

[00:58:12] Speaker 06:
And if those levels remain within the ITU's limits, then you have a compliance system.

[00:58:21] Speaker 06:
That's basically the way the ITU software operates.

[00:58:25] Speaker 06:
What DISH's consultant did was it force-fed and manipulated its own data.

[00:58:34] Speaker 06:
pointed to particular locations and the software isn't designed to model or measure the power emissions in those particular locations.

[00:58:46] Speaker 06:
So it did not use the same procedure that the ITU would use.

[00:58:52] Speaker 06:
And that's why, and the commission said it's not going to consider something that doesn't use the ITU approved software and methodology.

[00:59:01] Speaker 07:
Let's suppose ITU completes their work and they say that everything will be in compliance with all of the relevant levels and requirements.

[00:59:21] Speaker 07:
Can DISH seek to use its scientists to replicate that?

[00:59:31] Speaker 07:
And if they were to find that ITU scientists were just wrong, they made a mistake, could they bring that to the commission's attention or is what the ITU, the ITU's conclusions essentially kind of non-reducible?

[00:59:53] Speaker 06:
Well, I think it would be hard for Dish to make that kind of argument, Ron, or it's important to understand that

[01:00:01] Speaker 06:
The software that SpaceX used to certify its compliance is the same software that the ITU will use to assess compliance.

[01:00:12] Speaker 06:
I mean, if there is a problem later on, it might be something to do with the input data, but in all likelihood, the software is going to, when the ITU applies the software, it's going to reach the same outcome.

[01:00:28] Speaker 06:
And I would remind the court, as we pointed out in our brief, DISH itself, when it used the ITU software as intended in its first interference study found that if SpaceX operates its system as it has proposed to do,

[01:00:45] Speaker 06:
limiting its service to no more than a single satellite beam in an area at a time, the software shows that SpaceX is in compliance with the limits.

[01:00:55] Speaker 06:
So DISH can't really dispute that.

[01:00:58] Speaker 06:
I think that's why you have the later studies where DISH decided it was going to have to come up with an alternative methodology to show interference because the software

[01:01:09] Speaker 06:
if properly applied, shows that SpaceX's system will not cause it, that it is in compliance with the limits.

[01:01:21] Speaker 07:
I'd also like to- One other question is, what does the commission mean when it says, we're granting this waiver, but you're proceeding at your own risk?

[01:01:31] Speaker 07:
What does that mean?

[01:01:32] Speaker 06:
Well, your honor, I think what the commission had in mind was that if

[01:01:37] Speaker 06:
And I believe it said this in the order, if the ITU were to make an unfavorable finding with respect to SpaceX's operation, then SpaceX would have to alter its operation to come into compliance with the ITU's limits.

[01:02:00] Speaker 06:
And I think another thing to keep in mind, again, we don't expect this is going to happen, but even if during the time that this matter is pending at the ITU, if it emerges that there is evidence of actual interference, then SpaceX would be required under FCC rules to come into compliance with

[01:02:25] Speaker 06:
ITU's limits and to reduce its power emissions, to alter its operations.

[01:02:31] Speaker 07:
How would an entity like DISH establish that there was actual interference?

[01:02:40] Speaker 06:
Well, my understanding is that there are measurement devices that can be used.

[01:02:45] Speaker 06:
Once you have

[01:02:47] Speaker 06:
a system in operation, you've moved out of the room, the realm of the hypothetical, the theoretical, the software models, and you can actually measure the power that is being emitted from satellites.

[01:03:03] Speaker 06:
That's my understanding that there are measurement tools for doing that sort of thing.

[01:03:11] Speaker 07:
So they could actually measure the power that's being

[01:03:17] Speaker 06:
I guess, directed at a particular facility in a particular area.

[01:03:26] Speaker 06:
That is my understanding.

[01:03:29] Speaker 06:
Yes.

[01:03:30] Speaker 06:
And at that point, if there is documented evidence that SpaceX is out of compliance, it will have an obligation to come into compliance.

[01:03:41] Speaker 07:
And one of the conditions- And are there penalties, financial penalties, or is it just a wag of the finger and you're told you have to come into compliance?

[01:03:55] Speaker 06:
Well, there could be penalties.

[01:03:57] Speaker 06:
It would depend, I suppose, on the severity of the interference.

[01:04:02] Speaker 06:
And it could also be, if it were found that

[01:04:08] Speaker 06:
Let's say SpaceX made a bad faith certification that it was not going to interfere.

[01:04:16] Speaker 06:
If there were evidence that SpaceX knew that its operations would interfere, that there could be fines or forfeitures under sections 501 through 504 of the Communications Act.

[01:04:32] Speaker 06:
The commission would even be authorized, let's say, and I'm not saying this, I'm speaking strictly hypothetically.

[01:04:39] Speaker 06:
There's no evidence that SpaceX has done anything wrong here.

[01:04:43] Speaker 06:
But if there were evidence that SpaceX had knowingly misrepresented, that it could certify compliance, that it knew that it wasn't in compliance and it certified anyway, under 312A1 of the Communications Act,

[01:05:01] Speaker 06:
the commission would have the authority to go so far as to revoke SpaceX's license based on a knowingness representation.

[01:05:09] Speaker 06:
So there is the potential for some serious penalties.

[01:05:15] Speaker 06:
I would point out also, I'm sorry, I would point out also at JA-68, one of the conditions of SpaceX's operation

[01:05:30] Speaker 06:
It's paragraph 97 subparagraph T. It talks about how during certain periods of its operations, SpaceX must operate on a non-harmful interference basis.

[01:05:43] Speaker 06:
That is SpaceX must not cause harmful interference.

[01:05:46] Speaker 06:
That's consistent more generally with the commission's rules, particularly 47 CFR section 25.289, which says,

[01:05:57] Speaker 06:
non-geostationary systems must not cause unacceptable interference to geostationary systems.

[01:06:04] Speaker 06:
And if there is evidence that they are doing so, they'll have to take action to remedy that.

[01:06:15] Speaker 04:
I took Disha's answer to one of Judge Wilkins' questions to be that in these kind of worst case scenarios you're describing,

[01:06:27] Speaker 04:
dish or its customers would not be able to sue SpaceX for damages.

[01:06:35] Speaker 04:
Do you agree with that?

[01:06:36] Speaker 06:
I don't honestly know, Your Honor.

[01:06:42] Speaker 06:
That could be a separate question.

[01:06:46] Speaker 06:
There might be separate civil litigation that doesn't involve the FCC.

[01:06:50] Speaker 04:
That's not what the FCC had in mind when it said that SpaceX would proceed at its own risk.

[01:06:59] Speaker 06:
might have been a consideration.

[01:07:01] Speaker 06:
I think what the FCC had in mind was regulatory consequences from the FCC, that if it went ahead and deployed all these satellites and then it turned out that there was some, you know, that it was causing interference, it might have to, you know,

[01:07:23] Speaker 06:
It might have to reduce the number of satellites.

[01:07:25] Speaker 06:
It might have to move the satellites around.

[01:07:27] Speaker 06:
It could be disruptive to their operation to have to deal with these sorts of compliance issues later on down the line.

[01:07:36] Speaker 06:
I think that's all the commission had in mind.

[01:07:40] Speaker 07:
As far as like, I mean, it seems like the fundamental obligation imposed by the statute and the regulation is to prevent

[01:07:53] Speaker 07:
harmful interference.

[01:07:57] Speaker 07:
Nothing should be permitted unless it can be done without there being harmful interference.

[01:08:10] Speaker 07:
So it seems odd that that very core requirement, that fundamental requirement that everything else was really dependent upon

[01:08:23] Speaker 07:
is waived and we say go ahead and kind of like, you know, ready fire aim.

[01:08:33] Speaker 07:
We're going to let you go ahead and operate and then demonstrate pursuant to the way that we require these things and we demonstrated that there's no harmful interference.

[01:08:48] Speaker 07:
Why is that a reasonable way for an agency to do something like this?

[01:08:53] Speaker 06:
Your Honor, I would disagree with the premise that the Commission just made absolutely no findings with respect to harmful interference.

[01:09:01] Speaker 06:
Under the rule that was set up, applicants have to certify that they will not cause harmful interference, that they are in compliance with the ITU's limits, and that certification is based on

[01:09:16] Speaker 06:
the ITU's validation software, which is the best available predictive measure that we have of compliance for applicants who are proposing satellite systems.

[01:09:27] Speaker 06:
The commission based its analysis granted the license based on that certification, and that was a perfectly reasonable and permissible way to proceed.

[01:09:40] Speaker 06:
If the concern is that, I guess your question goes more to the, I guess the waiver issue with respect to the commission allowed the service to commence before the ITU made its validation finding, made its favorable finding.

[01:10:03] Speaker 06:
And the commission explained why it did that in this particular case.

[01:10:08] Speaker 06:
There was a compelling public interest in promoting expedited deployment of this service.

[01:10:20] Speaker 06:
And it's not just limited to the first modification.

[01:10:26] Speaker 06:
Although AT&T said, well, there was no reason

[01:10:31] Speaker 06:
to extend this waiver to the third modification.

[01:10:36] Speaker 06:
But the commission found in particular that this third modification would have particular public interest benefits for polar regions, for communities in Alaska who have been traditionally unserved or underserved.

[01:10:50] Speaker 06:
And this particular modification would make broadband service available to those communities in some instances for the first time, communities that

[01:11:01] Speaker 06:
where service has been unreliable, unaffordable, and sometimes completely unavailable.

[01:11:07] Speaker 06:
So there was a reason for the commission.

[01:11:10] Speaker 06:
The commission believed that waiver was justified in that circumstance.

[01:11:14] Speaker 06:
And the commission took comfort in the idea that because SpaceX had used the same software to certify its compliance, that the ITU was later going to be using to verify its compliance, the likelihood was

[01:11:31] Speaker 06:
that the ITU would ultimately confirm SpaceX is in compliance.

[01:11:38] Speaker 07:
Thank you.

[01:11:40] Speaker 07:
Judge Katz, Judge Walker, do you have questions?

[01:11:44] Speaker 07:
I'll set them.

[01:11:46] Speaker 08:
Thank you, Your Honors.

[01:11:48] Speaker 07:
Thank you.

[01:11:50] Speaker 07:
We'll now hear from Ms.

[01:11:53] Speaker 07:
Proctor-May.

[01:11:55] Speaker 03:
Morning, your honors may it please the court, I'm Rachel proctor may on behalf of the Federal Communications Commission and the United States.

[01:12:03] Speaker 03:
I'd like to start with the balance groups associational standing.

[01:12:08] Speaker 03:
There is no case that says that.

[01:12:10] Speaker 03:
A court has to take their claims to be a traditional membership association or functional equivalent at face value.

[01:12:18] Speaker 03:
And that includes the cases that the balance group has cited those cases, including students for a fair admissions all involved traditional membership associations where it was clear that they were traditional membership associations based on things like articles and corporations and bylaws, which the balance group has not.

[01:12:36] Speaker 03:
offered here.

[01:12:38] Speaker 03:
And this serves an important constitutional principle.

[01:12:41] Speaker 03:
It protects the injury and fact requirement.

[01:12:43] Speaker 03:
The associational standing doctrine allows an uninjured organization to bring suit.

[01:12:50] Speaker 03:
But in order for it to properly do that, it must have a identity of interest with the individuals it purports to represent.

[01:12:58] Speaker 03:
That's discussed in American Legal Foundation.

[01:13:01] Speaker 07:
So to the extent that people join

[01:13:06] Speaker 07:
join the organization and we have evidence in the record that that's kind of how it works, that we kind of have to affirmatively associate themselves with the balance group.

[01:13:19] Speaker 07:
Why isn't that so?

[01:13:21] Speaker 03:
Well, if the affirmative association is joining the email list, the court did reject that in Sorenson.

[01:13:29] Speaker 03:
And if it's putting in a declaration, the court rejected declarations from supporters in American Legal Foundation.

[01:13:40] Speaker 03:
And again, it turns on what is the nature of the relationship between these individuals and

[01:13:47] Speaker 03:
the organization, it keeps organizations from just finding people and signing them up after the fact so that when they don't have standing on their own.

[01:13:59] Speaker 03:
They can manufacture it after the fact.

[01:14:02] Speaker 03:
I think it's clear here that there's been no indication that the balance crew was a traditional membership association again it's it's

[01:14:12] Speaker 03:
It hasn't disputed that you become a member by joining the email list and its own website states that its membership kickoff meeting was in August 2021.

[01:14:23] Speaker 03:
That's at the government's addendum at 13.

[01:14:25] Speaker 03:
So I think there's ample reason for the court to look past the bare assertion of actually having members.

[01:14:33] Speaker 03:
We've also disputed Biasat's standing.

[01:14:36] Speaker 03:
They've asserted two purely economical injuries that are conclusory and speculation that its satellite might someday be damaged.

[01:14:45] Speaker 03:
But if your honors have no questions about that, I'd like to- I do, Ms.

[01:14:49] Speaker 04:
May, with regard to Biasat, because it seems like something that might eliminate the need to inquire into the balance group's standing.

[01:15:00] Speaker 04:
Viasat says that in order to continue deploying its satellites, that the deployment of the SpaceX satellites and the lack of the NEPA environmental assessment will cost it money, that it will cost more money and it will be more complex to deploy their satellites.

[01:15:25] Speaker 04:
It's not an environmental harm.

[01:15:28] Speaker 04:
but it seems like it's an Article III standing harm, Article III standing injury.

[01:15:33] Speaker 04:
And as I understand it, the FCC did not argue that that economic harm falls outside NEPA's environmental zone of interest.

[01:15:47] Speaker 04:
So tell me why I shouldn't

[01:15:51] Speaker 04:
Propose this for our disposition.

[01:15:55] Speaker 04:
There's article three standing.

[01:15:57] Speaker 03:
Yeah, we disputed both article three standing and the zone of interest for the article three standing our argument is that they haven't substantiated that it will in fact impose additional costs on them.

[01:16:09] Speaker 03:
Operators already have to operate in a world and a universe where there are significant other satellites.

[01:16:19] Speaker 03:
And so they have claimed that they have to take on additional costs because there will be more satellites in space.

[01:16:31] Speaker 03:
But they haven't substantiated that.

[01:16:33] Speaker 03:
And there are many cases in which this court has not taken

[01:16:36] Speaker 03:
conclusory claims of financial injury at face value, such as Swanson Manufacturing Group and National Association of Home Builders.

[01:16:44] Speaker 04:
And then- Why is it not self-evident that if SpaceX deploys more satellites than have been deployed in all of human history combined, that it will take whatever complexity Niasat already faces and make it more complex in a way that will be more costly.

[01:17:06] Speaker 03:
Nothing in the record shows how Viasat addresses that complexity.

[01:17:13] Speaker 03:
Perhaps there are computer algorithms and you press play and the computer dodges other satellites going up.

[01:17:21] Speaker 03:
Perhaps every launch no matter what day it has to be on costs the same.

[01:17:26] Speaker 03:
It's just it's Viasat's burden to demonstrate their standing and they haven't said anything other than it'll be more expensive and we just don't know why.

[01:17:36] Speaker 08:
And then what is what is the baseline.

[01:17:40] Speaker 08:
How many additional satellites, does the order under review, authorize sure.

[01:17:51] Speaker 03:
very clear.

[01:17:52] Speaker 03:
So the original authorization in 2018 authorized 4408 satellites.

[01:18:00] Speaker 03:
And those satellites were authorized to operate at 1100 to 1300.

[01:18:04] Speaker 08:
They're already in space.

[01:18:08] Speaker 03:
No, no, no, this is what I'm trying to explain.

[01:18:10] Speaker 03:
And there was some confusion about this.

[01:18:11] Speaker 03:
And so this is why I'm going to take a second to walk.

[01:18:15] Speaker 03:
So they were at 1100 to 1300.

[01:18:17] Speaker 03:
They were authorized to operate at 1100 to 1300.

[01:18:20] Speaker 03:
However, they didn't start launching because at that time the launch was conditioned on an updated orbital debris plan to make sure that SpaceX was meeting its obligations under the commission's orbital debris rules.

[01:18:35] Speaker 03:
And so in the first modification proceeding in 2019, that was when SpaceX received full authorization to launch 1,584 satellites.

[01:18:46] Speaker 03:
And so those have gone up.

[01:18:48] Speaker 03:
And in this proceeding, it is receiving the final authorization for the additional approximately 2,800 satellites.

[01:18:58] Speaker 09:
Okay, thank you.

[01:19:00] Speaker 03:
Sure.

[01:19:01] Speaker 03:
I think I was at the zone of interest for... Can we just quickly do article three on the...

[01:19:12] Speaker 08:
orbital debris point.

[01:19:15] Speaker 08:
I mean, intuitively that sounds very unlikely to me, but Mr. J cited very specific allegations about a seemingly not insubstantial risk over a whatever period of a couple of years.

[01:19:36] Speaker 03:
Sure, so just two things.

[01:19:39] Speaker 03:
First of all, the orbital debris is not the injury.

[01:19:43] Speaker 03:
The injury would be the ultimate damage to a Viasat satellite.

[01:19:49] Speaker 08:
Right, the risk that the debris will harm a Viasat satellite.

[01:19:54] Speaker 08:
That's, I'm sorry, that was my short hair.

[01:19:56] Speaker 03:
Sure, just to be clear.

[01:19:57] Speaker 03:
Okay, the article that Mr. Jay cited at JA894, it's from, it's just not accurate.

[01:20:05] Speaker 03:
It's from, it's outdated, more to the point, it's from 2019.

[01:20:09] Speaker 03:
It was discussing the proposed SpaceX constellation, when it was still at 1100 kilometers.

[01:20:19] Speaker 03:
Satellites at a lower altitude have a lower collision risk.

[01:20:23] Speaker 03:
This is because they can more quickly be returned to the atmosphere to demise at the end of their useful lives.

[01:20:31] Speaker 03:
And so when the commission actually looked at the collision risk in this proceeding with current data based on the actual observed failure rate of SpaceX satellites to date,

[01:20:45] Speaker 03:
It calculated a far lower collision risk of no more than one in a total cumulative collision risk of no more than one in 44.5 over the entire 15 year term.

[01:20:57] Speaker 03:
And so that is the risk that SpaceX might suffer a collision.

[01:21:01] Speaker 03:
And then the risk that Viasat would be injured by that collision is smaller still.

[01:21:09] Speaker 03:
And so for that reason, as this court is considering whether Viasat has met its burden to demonstrate that the increased risk is anything other than speculative, we would submit that it has not met that burden.

[01:21:22] Speaker 07:
You said that the commission found that it was one in 44.5.

[01:21:28] Speaker 03:
That was the highest.

[01:21:30] Speaker 03:
It was a range of risks because the estimate of collision risk turns on factors that are in flux and SpaceX adjust its operations.

[01:21:43] Speaker 03:
Obviously it has an interest in continually improving its satellites so that they don't collide.

[01:21:49] Speaker 03:
And so it was a range of risks.

[01:21:51] Speaker 03:
It's discussed at paragraphs 61 to 63 of the order, which is at JAA.

[01:21:56] Speaker 03:
59, I believe.

[01:22:00] Speaker 08:
That's a low percentage, but it's a pretty catastrophic consequence.

[01:22:07] Speaker 08:
I mean, if you told me there was a one in 44 chance that the airplane I was about to get on would crash, I probably wouldn't get on the plane.

[01:22:18] Speaker 08:
So why isn't that?

[01:22:21] Speaker 03:
Well, again, it's a one in forty four risk at most.

[01:22:26] Speaker 03:
And again, I'm sorry, I want to make one more thing clear.

[01:22:28] Speaker 03:
When the commission was calculating that risk, it was the entire forty four hundred satellite.

[01:22:34] Speaker 03:
So the one so the the number for this set of twenty eight hundred satellites is lower still.

[01:22:41] Speaker 03:
So I don't want to get into that.

[01:22:45] Speaker 08:
But we're not in the realm of de minimis.

[01:22:52] Speaker 03:
Well, we haven't shown that for Viasat, the realm is not de minimis.

[01:23:00] Speaker 03:
Because even assuming that SpaceX has a collision,

[01:23:06] Speaker 03:
It's far from clear that that collision would ever damage a Viasat satellite.

[01:23:12] Speaker 08:
Oh, I'm sorry.

[01:23:13] Speaker 08:
What is one in 44 chance of what?

[01:23:18] Speaker 03:
Of a collision over the 15-year license term, assuming that 10,000.

[01:23:28] Speaker 08:
Collision of what to what?

[01:23:30] Speaker 03:
Yeah.

[01:23:33] Speaker 03:
a collision, full stop.

[01:23:36] Speaker 03:
So it's not a one in 44.

[01:23:38] Speaker 08:
And again, it's not one in 44 for vice.

[01:23:41] Speaker 03:
No, absolutely not and vice that hasn't offered anything to let us know what it is.

[01:23:49] Speaker 03:
So we just don't know.

[01:23:50] Speaker 03:
And so therefore it hasn't met its burden.

[01:23:52] Speaker 08:
One in 44 that a SpaceX satellite will... Again, I should have used the larger range.

[01:24:02] Speaker 03:
It's the smallest range that it's the end of the range they considered was one in 44.5.

[01:24:09] Speaker 03:
cumulative risk that a SpaceX satellite would suffer a collision over the 15 year license term based on certain assumptions about the retirement rate and the number of satellites launched.

[01:24:23] Speaker 03:
And again, that's for the entire 4,400.

[01:24:25] Speaker 08:
And that could be a collision with one of the other 4,000 satellites

[01:24:34] Speaker 08:
SpaceX satellites or a collision with the one or maybe soon to be two satellites that Viasat has in the same orbital range?

[01:24:50] Speaker 08:
That is it is conceivable but again I would say that the one if it's if they're four thousand that are SpaceX and one that is Viasat then maybe that is pushing back towards de minimis but

[01:25:05] Speaker 07:
But why isn't a single one of those collisions if it were to happen with Biosat necessarily significant?

[01:25:14] Speaker 07:
And so if we're looking at the language of the regulation, why shouldn't we consider this to be meet the standard of kind of may have significant impact?

[01:25:26] Speaker 03:
Sure.

[01:25:27] Speaker 03:
So we'll shift to the merits now.

[01:25:37] Speaker 03:
As to collision risk, what the commission determined was that it need not reassess that risk under NEPA when it had already fully assessed the risk as part of its orbital debris analysis.

[01:25:54] Speaker 03:
So it has a 15 page paragraph discussion in the order, fully analyzing and estimating the risk based on the factors that we've been discussing.

[01:26:02] Speaker 03:
And then, when via set argued, you need to redo this under the office offices of NEPA.

[01:26:12] Speaker 03:
the commission reasonably concluded that there was no point in doing that.

[01:26:15] Speaker 03:
Obviously NEPA is governed by a rule of reason that judges the need to do additional analysis based on the usefulness of that analysis.

[01:26:25] Speaker 03:
And Viasat hasn't explained any way that redoing the analysis would be useful to the commission or what that would even consist of given the inherent uncertainties in calculating collision risk based on the factors that it's based on.

[01:26:42] Speaker 03:
And so if I could turn to some of the arguments that Mr. Jay made about Illumina, he pointed you to JA 469 that had some very scary sounding language regarding radicals.

[01:26:57] Speaker 03:
I just might like to make clear that Illumina is not a radical.

[01:27:02] Speaker 03:
Illumina is a particle.

[01:27:04] Speaker 03:
And so that article discusses both radicals

[01:27:09] Speaker 03:
particles that we're concerned about for alumina.

[01:27:12] Speaker 03:
And so in that sense, it is very much mixing apples and oranges, which is, I think, what this record is doing in general.

[01:27:21] Speaker 03:
Just to be clear, the evidence regarding alumina consisted of three pieces of evidence.

[01:27:29] Speaker 03:
There were two articles addressing rocket emissions, which is not what they're alleging here.

[01:27:35] Speaker 03:
And those are at

[01:27:37] Speaker 03:
J 465 and 499 and the one conference poster discussing up to 100,000 satellites which is at J 520.

[01:27:47] Speaker 03:
And so, when these, when these evidence sources.

[01:27:54] Speaker 03:
addressed a far greater number of Illumina sources than is actually at issue with these satellites.

[01:28:01] Speaker 03:
It was entirely reasonable for the Commission to use its judgment to draw the line between significance and not based on inherently imperfect data, which is what agencies do all the time.

[01:28:13] Speaker 03:
And here I think it would be helpful to step back and remember where we are in the NEPA framework.

[01:28:20] Speaker 03:
A categorical exclusion applies to actions that the Commission has already determined normally.

[01:28:28] Speaker 03:
do not have a significant environmental impact.

[01:28:31] Speaker 03:
And the commission's need to implementing rules that's 47 CFR 1.1306A.

[01:28:38] Speaker 03:
And so 1.1307C, the rule at issue here is an exception.

[01:28:43] Speaker 03:
And it applies when two things happen.

[01:28:46] Speaker 03:
First, there's a written petition alleging in detail environmental effects.

[01:28:51] Speaker 03:
And second, the commission makes a threshold determination whether there may be significance

[01:28:58] Speaker 03:
or not.

[01:28:59] Speaker 03:
The rule is not some impact, the rule is significant impact.

[01:29:03] Speaker 03:
And so here, the commission reasonably concluded that these three articles that spoke to far greater numbers of Illumina sources simply didn't establish that that may have a significant impact standard was met.

[01:29:17] Speaker 03:
Turning to the night sky, mitigation is very much not a red herring.

[01:29:22] Speaker 03:
Again, the commission made clear that the evidence that Biasat had put forth addressed large satellite constellations in general.

[01:29:33] Speaker 03:
That's at JA 60 paragraph 86.

[01:29:37] Speaker 03:
And so it then described how SpaceX is different.

[01:29:41] Speaker 03:
SpaceX is different because it's working with the astronomy community to minimize its impact.

[01:29:46] Speaker 03:
in the way it's described in the order.

[01:29:48] Speaker 03:
It's trying to darken its satellites, it's using Pfizer's, it's lowering its altitude, and that astronomers had put in a letter

[01:29:59] Speaker 03:
explaining that those efforts were paying off.

[01:30:02] Speaker 03:
And so for these reasons, it was entirely reasonable for the commission to conclude that the impacts of the SpaceX satellites at issue did not meet.

[01:30:16] Speaker 03:
They may have a significant risk standard.

[01:30:20] Speaker 03:
And I see I'm well over my time.

[01:30:22] Speaker 03:
Do your honors have other questions?

[01:30:24] Speaker 07:
Why isn't that similar to kind of competing

[01:30:30] Speaker 07:
I mean, the appellants have scientists, astronomers who disagree.

[01:30:38] Speaker 07:
So why isn't this a situation like in our precedent where, you know, if you have kind of competing studies, that's sufficient to trigger the summary.

[01:30:53] Speaker 03:
Sure.

[01:30:54] Speaker 03:
Um, this case is very different from American Bird Conservancy American Bird Conservancy as a starting point held that the commission can't rely on uncertainty, but it didn't hold that the commission must prepare an environmental assessment.

[01:31:10] Speaker 03:
anytime there's a petition asserting some effects but where the evidence leaves them unclear or the scope unclear.

[01:31:18] Speaker 03:
That would be inconsistent with the rule and it would have significant practical implications.

[01:31:24] Speaker 03:
For example, one could point to these same three articles to suggest that any other satellite constellation would have to go or not even satellite constellation, satellite deployment,

[01:31:34] Speaker 03:
would have to go through an environmental assessment.

[01:31:38] Speaker 03:
And so then if the answer to that would be, well, here we've got 3,000 and somewhere else there's 300 and somewhere else there's 30, that's exactly the point.

[01:31:47] Speaker 03:
The commission needs to be able to look at the competing evidence and draw the line based on its judgments, just as agencies regularly do.

[01:32:00] Speaker 07:
Thank you, Judge Hanson.

[01:32:02] Speaker 08:
Just quickly, do you agree with Mr. J that if there is an appellant withstanding, that party can raise the full range of environmental harms, including ones that are unrelated to that party standing?

[01:32:21] Speaker 03:
In the context of a NEPA environmental assessment, that is my understanding, yes.

[01:32:28] Speaker 04:
Okay, thank you.

[01:32:29] Speaker 04:
I have one question, Judge Wilkins, if that's okay.

[01:32:33] Speaker 04:
We have time for one question.

[01:32:36] Speaker 04:
Ms.

[01:32:36] Speaker 04:
May, I don't want to reopen the discussion we had with Mr. Jay about how far NEPA extends into space.

[01:32:45] Speaker 04:
if at all.

[01:32:47] Speaker 04:
But in answering that question or trying to answer it in the run up to this argument, I struggled with imagining how light pollution works.

[01:32:56] Speaker 04:
And the image I have in mind is that the sun is sending particles of light and they bounce off these satellites and those particles then enter the Earth's atmosphere.

[01:33:06] Speaker 04:
making it, you know, harder to see the night sky because there's more light, there's more light particles in the Earth's actual atmosphere.

[01:33:14] Speaker 04:
And that kind of matters to me in terms of if NEPA scope stops at the Earth's atmosphere, it matters to me that these particles are entering the Earth's atmosphere, these light particles.

[01:33:23] Speaker 04:
Am I imagining light pollution well enough to understand it for the purposes of this NEPA question?

[01:33:31] Speaker 03:
I am not an expert and I will give you my understanding.

[01:33:37] Speaker 03:
My understanding is that the sun's light reaches the satellites and then the satellites reflect them to Earth, which is why they're visible at different times of day.

[01:33:51] Speaker 03:
And so I would assume that there are satellites that are

[01:33:56] Speaker 03:
outside the atmosphere, perhaps.

[01:33:59] Speaker 03:
I mean, it depends.

[01:34:00] Speaker 03:
I mean, the atmosphere has various layers.

[01:34:02] Speaker 03:
And so I think it depends on what satellites we're talking about because they're going to be at different altitudes.

[01:34:08] Speaker 03:
I would think that some are within the atmosphere and some may be outside of it.

[01:34:11] Speaker 03:
But again, I am far from the expert and barely even conversant in this topic.

[01:34:17] Speaker 04:
Thanks.

[01:34:18] Speaker 04:
That's helpful.

[01:34:21] Speaker 07:
All right.

[01:34:21] Speaker 07:
Thank you.

[01:34:21] Speaker 07:
Any other questions?

[01:34:24] Speaker 07:
All right.

[01:34:24] Speaker 07:
Thank you, Council.

[01:34:25] Speaker 07:
We'll now hear from council for an arena.

[01:34:34] Speaker 02:
May it please the court, Batik Shah for Intervener SpaceX.

[01:34:38] Speaker 02:
If I may start with the NEPA issues, Your Honor, where Ms.

[01:34:41] Speaker 02:
May left off.

[01:34:42] Speaker 02:
And I think it's helpful to pause for a moment, spend just a moment on the framework.

[01:34:46] Speaker 02:
Here, the court is not assessing de novo whether satellite constellations collectively pose the risk of a significant environmental impact.

[01:34:55] Speaker 02:
Rather, the question here is whether the FCC acted arbitrary and capriciously in finding that NEPA challengers failed to meet their burden

[01:35:03] Speaker 02:
to quote set forth in detail reasons justifying further review to overcome the unchallenged categorical exclusion for the specific 2800 satellites at issue.

[01:35:16] Speaker 02:
We're not talking about a 42,000 satellite constellation that that the challenge was trying to raise before the commission or 100,000 satellites

[01:35:26] Speaker 02:
with replacements.

[01:35:28] Speaker 02:
That framework matters because there are real costs to requiring an environmental assessment here.

[01:35:35] Speaker 02:
And that's the whole point of NEPA's burden shifting categorical exclusion framework.

[01:35:40] Speaker 02:
Not only are there the time and resources, albeit significant, that come with preparing an EA, but there are particular costs to the public interest here.

[01:35:49] Speaker 02:
We're talking about severely delaying broadband access that the commission has labeled a public interest priority to providing broadband access to underserved areas and unserved areas.

[01:36:03] Speaker 02:
And that's not just an impact on ordinary consumers or SpaceX's business and SpaceX's customers, but also its contracts with the military.

[01:36:13] Speaker 02:
As we chronicled in our declaration opposing the stay, SpaceX

[01:36:17] Speaker 02:
through the Starlink constellation and through the modification of these 2800 satellites or issue is providing service to the military and the Arctic regions to detect imminent threats to the homeland.

[01:36:29] Speaker 02:
Now all of these costs

[01:36:32] Speaker 02:
that come with the delay associated with the environmental assessment.

[01:36:35] Speaker 02:
That's one side of the ledger.

[01:36:37] Speaker 02:
On the other side of the ledger, Your Honors, is there is virtually no environmental benefit.

[01:36:43] Speaker 02:
And here's the reason why.

[01:36:45] Speaker 02:
The reality is that if you force the agencies to conduct environmental assessments where there is no need, like here,

[01:36:53] Speaker 02:
The applicants will simply seek foreign licensing to avoid NEPA claims altogether.

[01:36:58] Speaker 02:
This is not just a hypothetical.

[01:37:02] Speaker 02:
Every other non geostationary applicant in the latest round of processing before the FCC, with the exception of SpaceX and Amazon, went to foreign countries to get license where they don't have NEPA.

[01:37:16] Speaker 02:
The United States doesn't have exclusive regulatory oversight.

[01:37:19] Speaker 02:
a regulatory jurisdiction over space so they can get the deployment license as ViASAT has done.

[01:37:26] Speaker 02:
You can get the deployment license from a foreign country, not have any NEPA obligations, launch, put up those satellites, and then simply apply to FCC for market access with the argument that you've now subverted all the NEPA concerns because

[01:37:41] Speaker 02:
The launch reentry Illumina sunlight reflectivity that was all licensed by the foreign country which doesn't have those constraints.

[01:37:49] Speaker 02:
And now we're just talking about interference.

[01:37:52] Speaker 02:
And so I think it's important to remember that this framework has consequences and applying the framework as it's written is important here.

[01:38:01] Speaker 02:
Now, your honors have had good questions that we pressed before the commission that there's significant questions whether NEPA even applies to this scheme, but I would submit maybe an even easier way to resolve this case is simply looking to paragraph 78 of the commission's order.

[01:38:18] Speaker 02:
And here, this is the key point here is that much of Viasat's arguments and evidence

[01:38:25] Speaker 02:
before the agency, when they were arguing this, were directed to a collective constellation, hypothetical SpaceX satellites from past, present, and future, a 42,000 satellite constellation that Viasat characterizes over 100,000 satellites with replacements as the relevant baseline

[01:38:48] Speaker 02:
This is at j a 437 in their petition j a 937 to 47 and their reply brief j a 1268 to 1269 and their sir reply letters, they write over and over again quote underneath the commission must evaluate the environmental impact of the 42,000 satellites and untold multiples of replacements.

[01:39:09] Speaker 02:
that SpaceX plans to deploy.

[01:39:11] Speaker 02:
They have completely abandoned that argument on appeal, and that's because in paragraph 78, the commission said no.

[01:39:18] Speaker 02:
When you're talking about a categorical exclusion and a modification application, you look at the particular satellites at issue, and that is only 2,800 satellites at here.

[01:39:29] Speaker 02:
It's not even the 4,400.

[01:39:30] Speaker 02:
It's not the 42,000.

[01:39:32] Speaker 02:
It's not the 100,000.

[01:39:34] Speaker 02:
And that's incredibly important because that's what the NEPA analysis turns upon.

[01:39:40] Speaker 02:
The significant impact turns upon the magnitude of the number of satellites.

[01:39:45] Speaker 02:
And this is not just a kind of a legal hypothetical sort of thing.

[01:39:50] Speaker 02:
If you look at the very evidence that Viasat cites, their primary piece of evidence on Illumina

[01:39:57] Speaker 02:
Which is their primary argument that they raise, and Mr J didn't mention it here but it's the primary evidence they cited to below before the commission it's a primary evidence they cite in their brief it's j 520, which is made.

[01:40:13] Speaker 02:
reference, that is a one page poster.

[01:40:16] Speaker 02:
That poster presentation is based upon the quote, top 10 upcoming LEO constellations.

[01:40:24] Speaker 02:
And if you add up the number of satellites that that poster was analyzing, it is over 100,000 satellites from 10 different operators over the next, who knows decades.

[01:40:36] Speaker 02:
And then it says the exact extent there may be capable of global warming.

[01:40:41] Speaker 02:
The exact scent is unknown.

[01:40:43] Speaker 02:
Oh, for this hundred over 100,000 satellite constellation and so we require more study it was certainly within the commission's reasonable judgment to take that evidence and say look they have not met their burden here to show set for specific and detailed reasons to overcome the categorical exclusion.

[01:41:05] Speaker 02:
And, and, and again, the other evidence is barely barely even it's even more remote the rocket launches and as Miss Bay pointed out in their brief via sat says the articles established that even trace amounts of Illumina.

[01:41:21] Speaker 02:
could have significant impacts.

[01:41:23] Speaker 02:
That is not what the article says.

[01:41:24] Speaker 02:
At J469, if you read it, it is talking about radicals.

[01:41:29] Speaker 02:
And as Ms.

[01:41:30] Speaker 02:
May said, Illumina is not radicals.

[01:41:31] Speaker 02:
Knox is a radical.

[01:41:32] Speaker 02:
The chemicals emitted from rocket launches are radicals.

[01:41:36] Speaker 02:
Illumina is a surface upon which

[01:41:39] Speaker 02:
radicals can react.

[01:41:40] Speaker 02:
So when it says trace amounts of 469, it's talking about trace amounts of radicals can knock out lots of ozone.

[01:41:48] Speaker 02:
The lumina is the surface reaction.

[01:41:49] Speaker 02:
It doesn't say anything about how much lumina is necessary to act as a catalyst to facilitate those reactions.

[01:41:55] Speaker 02:
That's the sort.

[01:41:56] Speaker 02:
It can't just be that you can throw in a bunch of studies that don't speak to the actual harm and say,

[01:42:03] Speaker 02:
Uh, for you get an environmental assessment because there might be something that could happen.

[01:42:08] Speaker 02:
That is not how NEPA works and the agency was well within its discretion to do it.

[01:42:13] Speaker 02:
And I would also point the court to JA948 where Viassat, when they're talking about their own, they have their own, by the way, low earth orbit application for about 300

[01:42:24] Speaker 02:
satellites and they say well that doesn't have a significant impact for NEPA purposes because it's just one-tenth the size of SpaceX constellation.

[01:42:33] Speaker 02:
Well, Your Honors, the 2,800 satellites is less than one-fifteenth the size of the 42,000 satellites that Viasat focused on below and it's less than three percent of the over 100,000 satellites that's focused on their primary evidence at JA520.

[01:42:54] Speaker 02:
I'm also happy to address the other categories.

[01:42:58] Speaker 02:
Judge Walker you act asked about what they call light pollution.

[01:43:01] Speaker 02:
First of all, your honors, that is not what is normally understood as light pollution, light pollution typically

[01:43:09] Speaker 02:
talks about artificial sources of light that are emitting.

[01:43:12] Speaker 02:
Here we're talking about sunlight reflectivity.

[01:43:15] Speaker 02:
And again, again, at JA 966, when Viasat is talking about what they call light pollution, here's what they say, quote, the vast fleet of 42,000 operating LEO satellites that SpaceX proposes would be expected to have significant impacts on astronomy.

[01:43:36] Speaker 02:
Well, again, Your Honor, the Commission rejected the 42,000 baseline, said it's 2,800.

[01:43:42] Speaker 02:
Viasat isn't challenging that on appeal.

[01:43:45] Speaker 02:
So the question is not whether a vast fleet of 42,000 might have a significant impact, it's whether 2,800 satellites that the Commission, based on what it called the robust

[01:43:57] Speaker 02:
record here found that with the mitigating steps that it was taking, that by the way, the American astronomy of society submitted a letter and supported that with those mitigating steps, we no longer have a significant impact here.

[01:44:12] Speaker 02:
The NEPA regulations specifically say that agencies can take account

[01:44:17] Speaker 02:
and it makes sense, common sense, of course, that you have to look at the action after mitigation.

[01:44:22] Speaker 02:
And the agency can make a determination after mitigation, is there a plausible risk of significant impacts?

[01:44:28] Speaker 02:
The agency sensibly here said no.

[01:44:31] Speaker 02:
And there's a lot of technical stuff about how they've darkened the satellites to minimize sunlight reflectivity.

[01:44:37] Speaker 02:
And if you actually look at the pictures on the internet now, after a few days or so in orbit, they're barely visible to the naked eye.

[01:44:45] Speaker 02:
But again, the agency can make the sensible judgment as it did saying it investigated the robust record here.

[01:44:52] Speaker 02:
And it put on monitoring obligations right and and and the NEPA challengers say that oh well monitoring obligations show that the agency was concerned.

[01:45:01] Speaker 02:
Well, the agency can't be penalized for saying, look, on the record that the NEPA challengers have assembled, they haven't yet shown that they haven't met their burden to show with specific reasons that there may be a significant impact, but we're going to do belt and suspenders and we're going to require SpaceX as a condition of this license in virtually every category of harm here.

[01:45:23] Speaker 02:
There are conditions in the license modification grant

[01:45:26] Speaker 02:
that requires either SpaceX to report to keep the agency abreast to make sure that they haven't veered into a territory where there might be a significant environmental impact in which the commission has retained jurisdiction to step in at

[01:45:41] Speaker 02:
that point.

[01:45:43] Speaker 02:
Your honors, I'm happy to talk about the other categories such as orbital debris.

[01:45:49] Speaker 02:
To me, that is the easiest category here to dismiss by far because the FCC already has a far more detailed orbital degree mitigation regime than would be done in an environmental assessment.

[01:46:03] Speaker 02:
I have no idea what would be performed in an environmental assessment that the commission hasn't already done.

[01:46:09] Speaker 02:
In fact,

[01:46:09] Speaker 02:
There's a longer section of the order, which nobody is appealing, called orbital debris mitigation under the FCC's rules.

[01:46:18] Speaker 02:
And certainly, I don't think there's any basis to second guess the expert judgment on the FCC as to whether we have tolerable risks.

[01:46:26] Speaker 02:
The last category I think that I haven't mentioned is the launch emissions.

[01:46:31] Speaker 02:
Again, launch emissions are primarily the jurisdiction of the FAA.

[01:46:36] Speaker 02:
That's how the agencies have divided up their

[01:46:39] Speaker 02:
jurisdiction here on page 48 of our brief we cite the FAA actually did an environmental assessment of the very SpaceX rocket that is used to launch these satellites and what the what the FAA found

[01:46:57] Speaker 02:
actually addressing the specific ozone and global warming effects that Viasat is now putting into this case found that they are not material in any way.

[01:47:11] Speaker 02:
And that's it.

[01:47:11] Speaker 02:
We cite the FAA EA.

[01:47:14] Speaker 02:
If you want to look at that yourself, it's page 71 of the FAA's

[01:47:19] Speaker 02:
environmental assessment.

[01:47:21] Speaker 02:
I don't think there's any reason why this court would be second guessing either agency's expertise on those topics.

[01:47:32] Speaker 07:
Given the time, do you want to say anything with respect to the issues raised by DISH Network?

[01:47:41] Speaker 07:
If so, I'll give you a couple of minutes to do that.

[01:47:44] Speaker 02:
Sure, Your Honor, I'm happy to address the dish issues.

[01:47:48] Speaker 02:
I think first and foremost on the dish issues.

[01:47:52] Speaker 02:
It's important to keep in mind what was dishes primary argument before the commission.

[01:47:56] Speaker 02:
The dish paid a consultant to come and do a study using the IP ITU approved software and algorithm.

[01:48:05] Speaker 02:
The paid consultant did that study with an NCO of one, which means that the SpaceX satellites would direct one beam at a time at a particular location on Earth, because that's how SpaceX said it's going to operate this constellation.

[01:48:20] Speaker 02:
The paid consultant did that study using the ITU software and SpaceX passed.

[01:48:25] Speaker 02:
SpaceX ram the ITU software using an NCO one as it has operated its constellation and already has 1900 satellites up there as it has operated constellation as it plans to continue using its operation, which it put into the record here.

[01:48:42] Speaker 02:
And it passed.

[01:48:43] Speaker 02:
SpaceX made its input files available to anyone who wanted them.

[01:48:48] Speaker 02:
You can get the ITU validation software off the internet.

[01:48:51] Speaker 02:
Everyone has run it.

[01:48:52] Speaker 02:
SpaceX has run it.

[01:48:53] Speaker 02:
Dish's Paid Consultant ran it.

[01:48:55] Speaker 02:
They all come up with a passing grade.

[01:48:57] Speaker 02:
Their primary argument, Judge Wilkins, and I think this is responsive to your question that you were asking earlier,

[01:49:04] Speaker 02:
Their primary argument was, well, we don't believe that SpaceX is actually going to operate this at NCO one that they need to do more than one beam at a time in order to provide enough coverage, we think they're actually going to use three, five or 10 beams at a time.

[01:49:20] Speaker 02:
And so Commission, you should discredit that evidence.

[01:49:24] Speaker 02:
Well, SpaceX came back and said, this is how we've always operated it.

[01:49:28] Speaker 02:
SpaceX accepted the condition that DISH proposed.

[01:49:32] Speaker 02:
DISH proposed that the license be conditioned on an NCO of one.

[01:49:37] Speaker 02:
SpaceX said, that's how we operate it, so sure.

[01:49:39] Speaker 02:
Then the FCC put it into the license order.

[01:49:44] Speaker 02:
If SpaceX at any point in time actually deviated from that and ran it at a NCO of three, five, seven, or 10, at which point there will be detectable evidence of that, well, of course the commission can come in and levy whatever regulatory

[01:50:02] Speaker 02:
actions it wants to take based on SpaceX breaching the conditions of the license that it has issued.

[01:50:10] Speaker 02:
And so there isn't this isn't a situation where there isn't any recourse if SpaceX actually violates

[01:50:18] Speaker 02:
It's obligations.

[01:50:20] Speaker 02:
The last thing I'll say is Judge Katz's I think I believe you would ask, is this really kind of unprecedented.

[01:50:28] Speaker 02:
Is there anything else like this, the commission is approved an Amazon and GSO constellation.

[01:50:33] Speaker 02:
of 3,236 satellites, which is bigger than the 2,800 modification at issue here and in the range of the 4,400 total.

[01:50:43] Speaker 02:
It's also approved a one web non-geostationary satellite orbit of about 2,000 satellites again.

[01:50:52] Speaker 02:
And almost all of these, by the way, have steerable beams.

[01:50:56] Speaker 02:
And there are several other providers at varying levels of satellites that have either

[01:51:03] Speaker 02:
obtained approval or seeking approval.

[01:51:05] Speaker 02:
The point is, they've all been approved using the ITU software.

[01:51:10] Speaker 02:
And as Mr. Carr said, there hasn't been any evidence that, and these are all obviously at the application stage, they're all predictive judgments.

[01:51:18] Speaker 02:
And so the only question is, what predictive model do you use?

[01:51:22] Speaker 02:
The FCC has decided to adopt the international consensus model, the state of the art software from the ITU.

[01:51:30] Speaker 02:
And it has to be some predictive model.

[01:51:32] Speaker 02:
Either the FCC uses the ITU model, or it allows people to come in with ad hoc studies in every case.

[01:51:41] Speaker 02:
It is quite a reasonable judgment that the commission made in the 2017 rulemaking.

[01:51:46] Speaker 02:
to use the state of the art software and not invite ad hoc studies.

[01:51:51] Speaker 02:
Of course, if you tweak the algorithm, if you change the locations from the ITU software, anyone through trial and error can create a fail rating.

[01:52:02] Speaker 02:
You could look at any of the approved systems, by the way.

[01:52:06] Speaker 02:
And if you actually did what Dish's Paid Consultant did, if you took ITU's algorithm,

[01:52:13] Speaker 02:
But change the algorithm so it wasn't using the worst case geometry, which is designed to maximize interference, by the way.

[01:52:19] Speaker 02:
But if you replace that with your own handpicked locations, you could create a fail rating on virtually any system.

[01:52:26] Speaker 02:
But of course, that's not how it's supposed to work.

[01:52:28] Speaker 02:
FCC made the very considered and reasoned judgment in its expertise that the ITU software was the best way to go.

[01:52:34] Speaker 02:
And if there is actual interference on the ground after they're operating, again, this is all at the predictive stage, so there'll never be evidence one way or another.

[01:52:44] Speaker 02:
You just have to pick a predictive model.

[01:52:46] Speaker 02:
They pick the best one.

[01:52:48] Speaker 02:
If it turns out, Judge Wilkins, as you talked about, that there is,

[01:52:53] Speaker 02:
Interference that for example SpaceX is operating at NCO of five or 10 not one as they had promised, of course, the commission can step in.

[01:53:02] Speaker 02:
But there's no evidence of course that SpaceX is going to operate it at anything other than what it is committed to which is NCO of one, which has been validated by the ITU software.

[01:53:13] Speaker 02:
which SpaceX has made the input files, which DISH itself ran under the same software and came out with the same pass rating.

[01:53:21] Speaker 02:
And now we're just awaiting the ITU approval.

[01:53:23] Speaker 02:
And by the way, Your Honors, just as an empirical matter, we're not talking about years ahead for the ITU approval.

[01:53:30] Speaker 02:
This same partial waiver that was granted here was granted with the first tranche of 1,584 satellites that Ms.

[01:53:38] Speaker 02:
May mentioned in SpaceX.

[01:53:39] Speaker 02:
That's the first modification.

[01:53:41] Speaker 02:
That approval the first batch of that approval came about 13 months after SpaceX submitted it's all by the way it's all been approved that first tranche which was through the partial waiver the first time along it you said valid validated everything.

[01:54:00] Speaker 02:
The submission for the ITU approval here was submitted in February 2021.

[01:54:06] Speaker 02:
So if they take the same 13 months or a little over a year, we could have an answer.

[01:54:12] Speaker 02:
Obviously, nobody knows because it's in the ITU's control.

[01:54:15] Speaker 02:
But just to give you some sense, we could have an ITU validation within a couple of months.

[01:54:20] Speaker 02:
So I know I'm way over my time, so I'll stop there unless you have questions.

[01:54:25] Speaker 07:
All right.

[01:54:26] Speaker 07:
Judge Katz, Judge Walker.

[01:54:28] Speaker 07:
All right, thank you.

[01:54:31] Speaker 07:
Um, all right.

[01:54:33] Speaker 07:
Mr. Jay, you had no time left give you two minutes.

[01:54:40] Speaker 05:
Thank you very much, your honor, I'll just make a few points, a couple on standing and a couple on the merits on standing let me do one on the balance group, which is just to.

[01:54:50] Speaker 05:
make clear that in Sorensen, the organization that couldn't identify any members was trying to rely on members of its email list or people who liked its Facebook page.

[01:55:03] Speaker 05:
That is not what the balance group is doing here.

[01:55:05] Speaker 05:
Membership involves actual participation in the balance group's activities.

[01:55:10] Speaker 05:
I think that's actually demonstrated in the excerpt in the FCC's addendum

[01:55:14] Speaker 05:
And the suggestion that the kickoff meeting was the first day on which the FC the balance group had numbers is refuted by our declaration which explains that the that both Dr galaxy and Dr Billy were members before the notice of appeal or file was filed which was months before the so called kickoff meeting.

[01:55:34] Speaker 05:
Second on bias that standing.

[01:55:37] Speaker 05:
I want to underscore the point about cost and just and note that the costs detail that pages 29 to 30 of our agenda that the Dankberg declaration.

[01:55:47] Speaker 05:
It's not just the

[01:55:51] Speaker 05:
It's not just the cost of operating the satellites or the cost that would be incurred if there were a collision.

[01:55:56] Speaker 05:
It's also the difficulty in finding launch windows and the increased cost associated with launch windows from the crowding of low Earth orbit, both with satellites and with debris if there is a collision.

[01:56:07] Speaker 05:
As I noted, the Bolian Buyers article suggests that a single collision could make low Earth orbit unusable.

[01:56:13] Speaker 05:
On the merits.

[01:56:15] Speaker 05:
The other side suggested that the court apply the NEPA regs as written that's exactly what we're asking the court to do we want you to apply the may standard, which, as the commission itself said is a safeguard because it's categorical exclusion is so broad, the may standard is a relatively low bar.

[01:56:30] Speaker 05:
For Illumina, on the point about Illumina not being a radical, that's certainly correct.

[01:56:35] Speaker 05:
But Illumina is a surface on which radicals could destroy ozone, and a particle of Illumina can stay in the stratosphere for three to five years.

[01:56:45] Speaker 05:
So one radical can destroy a million particles or 100,000 particles of ozone.

[01:56:50] Speaker 05:
but then the Illumina remains there for a lengthy period of time.

[01:56:54] Speaker 05:
None of that is addressed in the FCC's order.

[01:56:56] Speaker 05:
Neither were a number of the distinctions that my friends sought to draw today, comparing one fraction to another.

[01:57:02] Speaker 05:
None of that's in the FCC's reasoning, and this kind of scientific judgment is what an EA would be for.

[01:57:06] Speaker 05:
And then finally on light pollution, I just want to underscore that as the commission acknowledges a note 351 of the order, they haven't achieved their mitigation goal even as to making satellites not visible to the naked unassisted eye.

[01:57:22] Speaker 05:
And our light pollution argument is broader than that because it also includes sky glow and the interference with astronomy.

[01:57:28] Speaker 05:
That is not speculative.

[01:57:30] Speaker 05:
That is not based on some kind of different denominator.

[01:57:33] Speaker 05:
It is documented right now and there are pictures in the record that you can see.

[01:57:37] Speaker 05:
Unless the court has any further questions, thank you very much.

[01:57:42] Speaker 05:
We urge you to take the order.

[01:57:43] Speaker 07:
Thank you, Councilor.

[01:57:46] Speaker 07:
And Councilor, Mr. Micolopoulos, I'll give you also two minutes.

[01:57:56] Speaker 01:
Thank you, Your Honors.

[01:57:57] Speaker 01:
And I have rather violently extricated the sources from the Joint Appendix for Efficiency.

[01:58:05] Speaker 01:
So I'll address first

[01:58:06] Speaker 01:
Mr. Carr's points.

[01:58:08] Speaker 01:
First, Mr. Carr drew a distinction between the predictive evidence we have presented and empirical evidence that may transpire in the future.

[01:58:21] Speaker 01:
And the first point, of course, I would like to make about that is back to what the FCC said in 2000, paragraph 191.

[01:58:29] Speaker 01:
It is imperative, the FCC said, that compliance be verified ex ante.

[01:58:35] Speaker 01:
during the licensing process.

[01:58:37] Speaker 01:
That, of course, will be after the fact.

[01:58:39] Speaker 01:
But beyond that, as for Mr. Carr's intimation that the FCC will closely look at this empirical evidence and will somehow accord it greater status than the expert evidence we have submitted, let me read to you from the order itself.

[01:58:56] Speaker 01:
And that's paragraph 41 of the order.

[01:59:00] Speaker 01:
Additionally, the FCC said, we decline

[01:59:04] Speaker 01:
to condition this grant of modification to require that if any DBS operator notifies SpaceX that its system is causing actual interference in excess of the certified limit, SpaceX should be required to immediately remedy the interference.

[01:59:21] Speaker 01:
No, we decline that.

[01:59:23] Speaker 01:
We find this is unnecessary given the existing condition that SpaceX operations

[01:59:30] Speaker 01:
comply with the limits, the limits that there will not be a finding about until the ITU gets around to it.

[01:59:38] Speaker 01:
So again, this shows a lack of any interest in treating the empirical evidence of the future any different than the expert evidence of the present.

[01:59:52] Speaker 01:
Then, and that goes to your question, just catch us about the system.

[01:59:57] Speaker 01:
This is a complex system.

[01:59:59] Speaker 01:
Is this something

[02:00:01] Speaker 01:
unprecedented.

[02:00:03] Speaker 01:
And the answer from Mr. Carr was no, the ITU has carefully looked at all sorts of systems.

[02:00:11] Speaker 01:
That's not what the record shows.

[02:00:14] Speaker 01:
And Joint Appendix 176, I believe, shows that this constellation is complex.

[02:00:24] Speaker 01:
It has interleaving orbits.

[02:00:26] Speaker 01:
It has several inclination angles.

[02:00:28] Speaker 01:
And this is exactly the kind of system that the ITU software was not geared to be able to handle.

[02:00:36] Speaker 01:
This is undisputed evidence from our expert witness.

[02:00:41] Speaker 01:
And then Mr. Carr said, and let me move to the second page from the joint appendix, that, well, if this has a problem,

[02:00:50] Speaker 01:
with the submission to the ITU, it can always go to the ITU.

[02:00:56] Speaker 01:
But what Mr. Carr was talking about was this becoming some part a member of a working party that will look at those issues and software changes for the future.

[02:01:08] Speaker 01:
The ITU hears only from administrations.

[02:01:12] Speaker 01:
If we were to go to the ITU in response to the submission made by the FCC and said,

[02:01:20] Speaker 01:
Hello, we are this.

[02:01:22] Speaker 01:
We're not an administration, but because our administration has a conflict of interest, please hear us.

[02:01:29] Speaker 01:
We would be politely or perhaps not shown the door.

[02:01:33] Speaker 01:
And then there was a question asked of Mr. Carr as to whether we are right about the use of the ITU software, because we said we used it

[02:01:50] Speaker 01:
And Mr. Carr disputed that.

[02:01:52] Speaker 01:
So I want to read to you from the joint appendix.

[02:01:56] Speaker 01:
This is again, undisputed expert evidence submitted by this.

[02:02:02] Speaker 01:
So we said recommendation ITUR 15032, the applicable recommendation does not handle complex constellations, but by using a feature

[02:02:19] Speaker 01:
in the trust finite visualize EPFT software.

[02:02:23] Speaker 01:
That's the ITU approved software.

[02:02:26] Speaker 01:
It is possible for the user to set this real world parameters, which improves significantly the accuracy of the assessment.

[02:02:34] Speaker 01:
So we did use the ITU approved software.

[02:02:38] Speaker 01:
We just said, set real life locations.

[02:02:41] Speaker 01:
Now to the arguments of council provides that.

[02:02:46] Speaker 07:
I think we're going to have to leave it there, Mr. Michaelopoulos, in the interest of time.

[02:02:53] Speaker ?:
All right.

[02:02:54] Speaker 07:
Thank you very much.

[02:02:55] Speaker 07:
We have your arguments.

[02:02:56] Speaker 07:
We'll take them as advice.