[00:00:00] Speaker 10:
Case number 22-1337 et al.

[00:00:03] Speaker 10:
International Dark Sky Association Inc.

[00:00:06] Speaker 10:
at balance versus Federal Communications Commission.

[00:00:09] Speaker 10:
Mr. Mudd for the International Dark Sky Association Inc.

[00:00:13] Speaker 10:
Mr. Michalopoulos for the Appellant Dish Network Corporation.

[00:00:17] Speaker 10:
Mr. Carr for the APOLI, Issues Raised by Dish Network.

[00:00:20] Speaker 10:
Ms.

[00:00:21] Speaker 10:
May for the APOLI, Issues Raised by International Dark Sky.

[00:00:24] Speaker 10:
Mr. Shaw for the Intervener.

[00:00:37] Speaker 02:
Mr. Mudd, whenever you're ready.

[00:00:39] Speaker 01:
Thank you.

[00:00:41] Speaker 01:
Good morning, Your Honors.

[00:00:43] Speaker 01:
May it please the Court.

[00:00:44] Speaker 01:
My name is Charles Lee Mudd, Jr.

[00:00:46] Speaker 01:
on behalf of the Appellant International Dark Sky Association, or Dark Sky.

[00:00:50] Speaker 01:
And with the Court's permission, I'd like to reserve two minutes for rebuttal.

[00:00:57] Speaker 01:
Not too long ago, before my father passed away, he and I spoke about how growing up in the country in Kentucky, he could walk outside when doing the chores in the morning and see the Milky way lost.

[00:01:10] Speaker 01:
Now, even in the Kentucky country, you're not really able to see the Milky way.

[00:01:15] Speaker 01:
And that kind of reminds me similarly to an analogous situation with young students in Chicago.

[00:01:21] Speaker 01:
that have never really ventured to the suburbs or beyond.

[00:01:25] Speaker 01:
And when they do, on exploratory aspects, they're amazed at a different world that they see in the night sky with a number of stars.

[00:01:33] Speaker 01:
Now, both of those situations involve ground-based light pollution.

[00:01:38] Speaker 01:
And on that issue, the society, we happen to be in efforts to remediate.

[00:01:44] Speaker 01:
But here, too, we're focused on the effects on the ground, the Earth, here terrestrially.

[00:01:50] Speaker 01:
Yes, we're at issue with satellites and yes, we're talking to some extent or a large extent about solar reflectivity of the satellites, but let's not forget

[00:02:00] Speaker 01:
that Earth terrestrially is central.

[00:02:03] Speaker 01:
The satellites are developed and planned here on Earth.

[00:02:06] Speaker 01:
They're manufactured here on Earth.

[00:02:08] Speaker 01:
They're launched from Earth.

[00:02:10] Speaker 01:
And for some, there's re-entry into Earth's atmosphere.

[00:02:13] Speaker 01:
They're operated from Earth.

[00:02:15] Speaker 01:
And most importantly for today, the effects that we're talking about are here on Earth terrestrially.

[00:02:22] Speaker 02:
So we're not... Mr. Mudd, maybe we could start out by talking about standing for your organization.

[00:02:29] Speaker 02:
I first have some questions on redress ability.

[00:02:34] Speaker 02:
So for instance, if the if the license here were to be set aside, what would be the what would be the practical consequence of that for the harms alleged here?

[00:02:45] Speaker 02:
Because satellites, the FCC here is licensing radio frequencies and transmissions.

[00:02:51] Speaker 02:
It's not

[00:02:52] Speaker 02:
regulating the actual launching of the satellites into space.

[00:02:58] Speaker 02:
I mean, that's the FAA and I assume other agencies as well.

[00:03:02] Speaker 02:
So can you speak to redressability here?

[00:03:05] Speaker 01:
Yes, and in doing so, I'll focus on two points.

[00:03:08] Speaker 01:
First, through your latter comment, the SEC, for better or for worse, has really stepped in to be the sheriff and regulate outer space activities in that regard.

[00:03:20] Speaker 01:
For example, mitigating space debris and the satellites from requiring requirements on that

[00:03:26] Speaker 01:
The FAA is the launch and reentry.

[00:03:30] Speaker 01:
There's also NOAA for Earth observation.

[00:03:33] Speaker 01:
But in terms of the operations of the satellites during their lifespan, that is the FCC.

[00:03:40] Speaker 01:
And so this falls clearly in their purview.

[00:03:43] Speaker 01:
But to your first point, the redressability and what is the effect of reversing the license

[00:03:51] Speaker 01:
It's compliance with the law.

[00:03:54] Speaker 01:
You know, NEPA and the FCC's own regulations clearly state, and even if with respect to the categorical exclusion, though it's an antiquated assessment that the FCC has made of its activities, but even with that categorical exclusion, its own regulations point out that if a third party

[00:04:19] Speaker 01:
know, submits evidence and contends that there are significant environmental effects.

[00:04:26] Speaker 02:
That doesn't go to standing though.

[00:04:29] Speaker 02:
It doesn't go to the question of redressability.

[00:04:32] Speaker 01:
So you're talking about our standing with respect to how we're involved?

[00:04:36] Speaker 01:
Your standing, right.

[00:04:37] Speaker 02:
Which we have to assure ourselves that you have before we reach the merits of your claims.

[00:04:41] Speaker 01:
Sure.

[00:04:42] Speaker 01:
And this court has previously addressed another case involving a SpaceX application in the FCC decision and found there that organizations did not have standing.

[00:04:53] Speaker 01:
And clearly those organizations in that case are distinctly different than the International Dark Sky.

[00:05:00] Speaker 01:
And if there is the environmental assessment required and they go through that process, the IDA benefits by having, you know, ideally if there are significant effects, which we contend there are, that the FCC will address those and look at those and come up with orders that balance all of the interests.

[00:05:20] Speaker 01:
The failure to do that

[00:05:22] Speaker 01:
is we might end up having a diminished dark sky.

[00:05:25] Speaker 01:
7,500, even the reduced number of satellites, doubles the amount of active satellites worldwide.

[00:05:32] Speaker 01:
And when you talk about a broader aspect of the effects on the night sky, astronomy, the cultural effects, and so forth, that's significant.

[00:05:42] Speaker 01:
And that's where our standing comes in, because we have a vested interest in making sure that the satellites that are launched

[00:05:50] Speaker 01:
And the applications for licenses are compliant with law where there are.

[00:05:54] Speaker 02:
So is it your contention that if the FCC were to make a different decision that these satellites would not be launched?

[00:06:05] Speaker 02:
Because I think there has to be some sort of, I mean, you know, we have relaxed redressability in our NEPA cases, but it's not, I mean, there still has to be some link between the NEPA analysis and the harm that's being alleged.

[00:06:19] Speaker 01:
Right, but I would also contend that redressability does not mean that a party has to guarantee that everything will be resolved in its favor.

[00:06:27] Speaker 01:
We just want compliance.

[00:06:29] Speaker 01:
I didn't say that.

[00:06:29] Speaker 02:
There still has to be some link, though.

[00:06:32] Speaker 02:
There has to be some causal connection.

[00:06:34] Speaker 02:
And I would argue that between the procedural, between the NEPA procedure and the harms that you want redressed.

[00:06:42] Speaker 01:
Right.

[00:06:43] Speaker 01:
And I would argue that the FCC's own regulations provide that redressability and that nexus.

[00:06:51] Speaker 01:
It states if an interested person alleges that a particular action otherwise categorically excluded will have a significant environmental effect, the person shall electronically submit, et cetera.

[00:07:02] Speaker 01:
And we have.

[00:07:04] Speaker 01:
We have a vested interest.

[00:07:05] Speaker 07:
Mr. Mudd, the FCC doesn't have the standing requirement of an Article III court.

[00:07:11] Speaker 07:
they welcome all comers and comments, including people who would not have standing at court.

[00:07:17] Speaker 07:
So we're still waiting for your focus on redressability for you and or your members and organizations.

[00:07:25] Speaker 01:
Well, all right.

[00:07:25] Speaker 01:
So the redressability, if there are significant effects and there were additional mitigating aspects that the FCC would have to impose on SpaceX, then we are

[00:07:36] Speaker 01:
benefiting by the continued existence of a dark sky as we know it today.

[00:07:43] Speaker 05:
Would you, with respect to the standing argument though, distinguish standing with respect to light pollution claims versus the aluminum deposits versus the launch emissions?

[00:07:54] Speaker 05:
Because I feel like they're blending everything and there might be distinctions at least there.

[00:07:58] Speaker 01:
Well, with respect to the Illumina, the Illumina itself can diffuse the night sky and have an effect on the overall brightness or darkness of the night sky.

[00:08:11] Speaker 01:
And so I understand and that the other parties have argued that the atmospheric effects is something completely outside the purview of the IDA by its mission.

[00:08:21] Speaker 01:
I disagree in principle, and I think that that would be a very narrow reading

[00:08:26] Speaker 01:
of the contours of what the IDA is advocating and interested in because all these issues are related.

[00:08:34] Speaker 01:
But I don't think we need to even address that because the Illumina does have and can have a significant effect as it increases on diffusing the atmosphere such that the dark sky becomes lighter.

[00:08:49] Speaker 07:
So the agency relied upon a, I guess it was the European Space Agency, wasn't it?

[00:08:55] Speaker 07:
Saying that there was no significant effect.

[00:08:59] Speaker 01:
The actual, with all due respect, Your Honor, I believe that the ESA reports contended that there was needing to be more studies and that there wasn't a definitive conclusion that could be made.

[00:09:14] Speaker 01:
And I would argue too.

[00:09:15] Speaker 07:
They could not at this time or when they did the study find, make a finding of a significant effect.

[00:09:23] Speaker 01:
But that goes to our argument that we don't need to show certainty.

[00:09:28] Speaker 01:
We just need to show that there, or the FCC decides that there may be significant effects.

[00:09:34] Speaker 01:
And we've submitted as other parties have sufficient evidence and testimony that there are significant effects.

[00:09:41] Speaker 01:
And even if the FCC doesn't necessarily agree that for sure there are, the argument has been made and the evidence introduced

[00:09:49] Speaker 01:
that it's hard to ignore and not conclude that there may be significant effects.

[00:09:55] Speaker 01:
And that is the MACE standard.

[00:09:56] Speaker 01:
And that's all that we necessarily need to show here.

[00:09:59] Speaker 01:
And that's all that needs to be done to require an environmental assessment.

[00:10:05] Speaker 02:
And that's- But the MACE standard, as you call it in your briefs, is, I mean, the FCC makes the determination.

[00:10:13] Speaker 02:
It doesn't say that if comments are put forward suggesting that this

[00:10:18] Speaker 02:
may have an effect that they have to order an environmental assessment.

[00:10:23] Speaker 02:
It's a determination that has to be made by the commission.

[00:10:27] Speaker 01:
The commission needs to review the petition and consider the environmental concerns.

[00:10:33] Speaker 01:
And if it determines that it may have a significant environmental impact, require the applicant to prepare an EA.

[00:10:40] Speaker 01:
But that's where we bring in the APA, because you are correct that it is its determination, but it can't just dismiss or facially address the issue and not substantively consider all the

[00:10:55] Speaker 01:
aspects brought before it.

[00:10:57] Speaker 01:
And we contend that's what happened.

[00:10:59] Speaker 01:
It's one thing to put in a lot of words and recitate, which it did, the number of parties and evidence introduced by Dark Sky as well as others and go through and then say, for example, Judge Ginsburg in reference to the ESA say, well, there's this report out here that

[00:11:17] Speaker 01:
that suggests that there's no determination right now that there are significant effects, we're done.

[00:11:23] Speaker 01:
But I would argue that that's not the reasoned analysis that the APA requires, and it's really an arbitrary and capricious treatment

[00:11:33] Speaker 01:
of these particular issues to reach the conclusion.

[00:11:36] Speaker 01:
So yes, it is the FCC's conclusion and decision, but the APA requires something more than just a recitation of the arguments and saying, we decide this way.

[00:11:48] Speaker 01:
It needs to give that reasoned analysis.

[00:11:53] Speaker 01:
I see that my time has expired, and I'll address any other questions that you may have.

[00:11:59] Speaker 01:
Otherwise, I'll conclude on my rebuttal.

[00:12:04] Speaker 02:
I do have one more question.

[00:12:06] Speaker 02:
Do you think that we need to decide here whether NEPA applies in space?

[00:12:12] Speaker 01:
I don't think that needs to be decided.

[00:12:15] Speaker 01:
Personally, I do.

[00:12:16] Speaker 01:
I mean, we do and the IDA does, but I don't think that that's necessary to be decided because as I began my argument, the focus here are the effects on Earth terrestrially.

[00:12:29] Speaker 01:
So the the and that goes to the fact that these are satellites that are manufactured, operated, controlled from Earth and so forth.

[00:12:40] Speaker 01:
And the effects that we're talking about, particularly with respect to the night sky, those are effects that we feel here on Earth terrestrially.

[00:12:53] Speaker 02:
Any further questions?

[00:12:55] Speaker 02:
Thank you.

[00:12:55] Speaker 04:
Thank you, Your Honors.

[00:13:01] Speaker 04:
Your Honours, may I approach?

[00:13:10] Speaker 02:
I think I've ever had exhibits.

[00:13:14] Speaker 02:
Exhibits, yeah.

[00:13:18] Speaker 04:
I think it does against his own.

[00:13:36] Speaker 03:
May it please the court, Pantelis Mykalopoulos for this.

[00:13:39] Speaker 03:
I would like to reserve one minute of my time.

[00:13:42] Speaker 03:
My colleague Andrew McLaughlin will be helping with handling the exhibits.

[00:13:48] Speaker 03:
The FCC and SpaceX defend the order below by resorting to ideas invented after the fact, allegations of harmless error, and a claim made by SpaceX about a favorable finding of the foreign body, the ITU, that shows everything that is wrong with this private sub-delegation, because it is the wrong finding for the wrong system.

[00:14:15] Speaker 03:
The FCC disregarded this as evidence that SpaceX's generation system would flunk the limits.

[00:14:23] Speaker 03:
And to be clear, we're not questioning the ITU limits themselves or their incorporation by the FCC.

[00:14:31] Speaker 03:
But we applied the ITU method.

[00:14:34] Speaker 03:
We applied the ITU software without any modification.

[00:14:38] Speaker 03:
Now the FCC says that there were reasons to doubt are showing, but no such reasons were expressed in the order.

[00:14:48] Speaker 03:
It's a briefs invention.

[00:14:50] Speaker 03:
The brief says, well, there had been no reports of harmful interference from the first generation system, which had been lower power.

[00:14:59] Speaker 03:
But finding harmful interference in this case is like a game of whack-a-mole when the moles are invisible.

[00:15:07] Speaker 03:
This, and this is our first exhibit, is what the SpaceX system looks like.

[00:15:13] Speaker 03:
We don't know where the customers are.

[00:15:15] Speaker 02:
So the DISH ITU analysis, though, analyzed SpaceX's submission as 18 separate submissions, whereas the ITU analysis would have treated them as one.

[00:15:31] Speaker 03:
Yeah, we rebutted their effort to split the system in 18, and we combined 18 into one.

[00:15:41] Speaker 03:
Then the FCC required SpaceX to submit a combined showing.

[00:15:46] Speaker 03:
We analyzed that combined showing as well.

[00:15:49] Speaker 03:
So it was not we who split it 18 ways.

[00:15:52] Speaker 03:
It was SpaceX.

[00:15:54] Speaker 03:
So we don't know where the customers are.

[00:15:56] Speaker 03:
We don't know where the satellites are.

[00:15:58] Speaker 03:
We don't know whom to knock on the door of among our subscribers and say, tomorrow you may lose your football game and please give us a call.

[00:16:08] Speaker 03:
So the FCC ignored our evidence only on the ground that it is the ITU's job to look into compliance.

[00:16:17] Speaker 03:
But the FCC knew how to look into compliance when it wanted to.

[00:16:23] Speaker 03:
The first showing, and that goes to your question, Judge Rao, the first showing by SpaceX and compliance was made indirectly.

[00:16:33] Speaker 03:
And what did they do?

[00:16:34] Speaker 03:
They split the system 18 ways in order to shoehorn it in the limits.

[00:16:41] Speaker 03:
That's what they did.

[00:16:42] Speaker 03:
And we said that this is like me claiming to break the world record for 100 meters by running from here, I guess, to where Judge Ginsburg is on the screen in nine seconds.

[00:16:55] Speaker 03:
And we said that if you put together, we put together the 18 constellations and if you put them together, you vastly exceed the power limits.

[00:17:07] Speaker 03:
But all of this was overtaken by events outside of the record.

[00:17:12] Speaker 03:
because the FCC had concluded that this first showing of SpaceX was inadequate.

[00:17:17] Speaker 03:
And we know that because the order asked SpaceX to ask the ITU to consider the joint system.

[00:17:27] Speaker 03:
And the FCC picks up the phone and calls SpaceX and says, you need to submit a second showing.

[00:17:33] Speaker 03:
So before washing its hands,

[00:17:37] Speaker 03:
of compliance, the FCC had kept its hands in the soup, or at least tasted the soup, but in a kitchen closed to the public.

[00:17:47] Speaker 02:
So why though is this not a collateral attack on the FCC's regulation that decided to use the ITU standards?

[00:17:56] Speaker 02:
That was already established in rulemaking.

[00:17:58] Speaker 02:
You know, the FCC made a determination that they would rely on ITU standards.

[00:18:06] Speaker 02:
So why is this not a collateral attack on that, which would not be permitted in this licensing?

[00:18:11] Speaker 03:
So for two reasons.

[00:18:13] Speaker 03:
First of all, we're not questioning the standards themselves.

[00:18:16] Speaker 03:
We're not questioning the incorporation of those standards by the ITU.

[00:18:20] Speaker 03:
We're questioning the disregard for our evidence that standards are met.

[00:18:25] Speaker 03:
Second, and this was the Viasat case, what Viasat faulted dish for doing was saying the methodology of the ITU needs to be improved.

[00:18:38] Speaker 03:
We are not saying that.

[00:18:39] Speaker 03:
We're saying apply your rules.

[00:18:42] Speaker 03:
Apply the methodology, the rule says, ITU approved software.

[00:18:47] Speaker 03:
We apply the ITU approved software without any change.

[00:18:51] Speaker 03:
So we're saying to the FCC, put that in the record.

[00:18:56] Speaker 03:
The FCC says, no, we will not let you evaluate this new showing.

[00:19:02] Speaker 03:
This was the combined system showing that Facebook outside.

[00:19:11] Speaker 03:
And

[00:19:12] Speaker 03:
The FCC said no, on the astonishing ground that it didn't consider the substance of the submission it requested.

[00:19:22] Speaker 03:
And the FCC says, well, in its own very defensive words, we requested it for the facilitation of preparation for coordination.

[00:19:33] Speaker 03:
But the problem is this is a smoke screen because the substance of the coordination is the same as the substance of the proceeding.

[00:19:43] Speaker 02:
SpaceX merely has to certify that it would pass the ITU standards.

[00:19:50] Speaker 03:
Yes, this is the first step.

[00:19:52] Speaker 02:
Right, so looking at the certification doesn't require the commission to actually look at the ITU, you know, run the software.

[00:20:01] Speaker 04:
Well, I mean, isn't that right?

[00:20:03] Speaker 02:
I mean, that's the sort of the way the and you say you're not challenging the FCC.

[00:20:07] Speaker 03:
We're not challenging the FCC.

[00:20:11] Speaker 03:
The agency has in front of it evidence that something is wrong.

[00:20:16] Speaker 03:
SpaceX had to split the system 18 ways to make it fit.

[00:20:22] Speaker 03:
And the FCC looked at this and said, well, something is wrong with that.

[00:20:25] Speaker 03:
So it didn't wash its hands right then.

[00:20:29] Speaker 03:
It knew enough to assess compliance a little bit.

[00:20:33] Speaker 03:
But when such evidence is there, you don't blind yourself and say, ITU, ITU, the rule.

[00:20:40] Speaker 03:
only says that the ITU finding will be a condition.

[00:20:44] Speaker 03:
It doesn't say the FCC will do nothing more and would blind itself to evidence to the contrary.

[00:20:51] Speaker 03:
And so the substance of coordination, because the FCC says we only requested the submission for the facilitation of coordination, the substance of coordination is the same as the substance of this proceeding.

[00:21:09] Speaker 02:
the FCC's regulation that suggests it can look behind the certification or evaluate anything at that stage?

[00:21:21] Speaker 02:
Just suggesting that just sort of as a matter of reasonableness?

[00:21:24] Speaker 03:
Yeah, as a matter of reasonableness.

[00:21:25] Speaker 03:
When they have evidence that something may be strained here, that you need to split your system 18 ways to make it fit,

[00:21:36] Speaker 03:
They looked at this and they should have looked at this and they should have more.

[00:21:40] Speaker 03:
There's nothing in the rule which should be respected, but there's nothing in the rule that prohibits them from doing that.

[00:21:48] Speaker 03:
So they're saying we're not putting in a public record on a separate exportation.

[00:21:53] Speaker 03:
We're not putting it in a public record because we only request for coordination, but the substance of coordination is about power limits.

[00:22:00] Speaker 03:
It's the same substance.

[00:22:02] Speaker 03:
In other words, in coordination.

[00:22:03] Speaker 07:
Council, if the FCC looked at the evidence that you're proposing and said, this is evidence that it supports compliance.

[00:22:18] Speaker 07:
It would still, I believe, have to send a matter to the ITU.

[00:22:23] Speaker 07:
The ITU would make its own determination, is that correct?

[00:22:27] Speaker 03:
In that case, yes.

[00:22:32] Speaker 07:
Suppose the FCC looked at it and said, this does not comply with the ITU.

[00:22:40] Speaker 07:
Then what would that send it to the ITU?

[00:22:42] Speaker 07:
Is that what you're saying?

[00:22:43] Speaker 03:
Well, since the FCC represents SpaceX in the ITU process,

[00:22:49] Speaker 03:
That's what coordination is.

[00:22:50] Speaker 03:
The FCC would have to call the ITU, file a submission, and say, this system meets the limits.

[00:22:57] Speaker 03:
If, based on our evidence of the infirmities of the second showing, the FCC was not convinced, it would have to make a different submission to the ITU.

[00:23:09] Speaker 03:
Either go back to SpaceX and get a different showing, or say to the ITU, we have reservations.

[00:23:15] Speaker 03:
about this.

[00:23:16] Speaker 07:
So that's what... We have reservations and then the ITU would perform an independent determination, correct?

[00:23:23] Speaker 07:
Yeah, and... Well, ultimately, whatever the FCC thinks, the ITU is going to be dispositive and the purpose of the rule and the scheme here is to get the service into the public wheel and to avoid delay, isn't that correct?

[00:23:42] Speaker 03:
Well, Your Honor, you mentioned that the ITU's finding would be dispositive.

[00:23:47] Speaker 03:
First of all, one hopes that the ITU would take into account the FCC's views, even though the FCC cannot tell the ITU what to do.

[00:23:57] Speaker 03:
But the dispositiveness of the ITU finding is one of the major problems we have with sub-delegation.

[00:24:04] Speaker 07:
But that's the rule you say you're not attacking.

[00:24:09] Speaker 03:
No, not your honor.

[00:24:12] Speaker 03:
We are attacking the sub delegation.

[00:24:16] Speaker 07:
It seems to me you're actually asking the FCC to depart from its rules.

[00:24:22] Speaker 03:
No, we're attacking sub delegation as the rule has been applied here.

[00:24:28] Speaker 03:
We don't have any problem with the rule per se, but if the rule were to mean, which we don't believe it means, that the FCC

[00:24:35] Speaker 03:
need to do something, nothing more, you know, beyond punting to the ITU, then that's an improper sub delegation.

[00:24:44] Speaker 02:
And as far as your sub delegation claim and as applied challenge, I mean, if the FCC had impermissibly sub delegated to the ITU, wouldn't that be a facial challenge?

[00:24:55] Speaker 02:
I mean, that would mean, I mean, that would

[00:24:58] Speaker 02:
That would be a challenge.

[00:24:59] Speaker 02:
That's the challenge to the regulation, you know, on its face.

[00:25:03] Speaker 02:
Like you can't have an impermissible sub.

[00:25:05] Speaker 02:
How do you have an impermissible sub delegation just for one party as applied?

[00:25:09] Speaker 04:
I don't know.

[00:25:18] Speaker 03:
condition, fact finding, advice giving, the agency has to final say.

[00:25:24] Speaker 03:
If the rule of the FCC, which we respect, were interpreted as we think it should be interpreted, so as to give the FCC the final say,

[00:25:34] Speaker 03:
then this would be permissible.

[00:25:36] Speaker 03:
If the agency does not have the final say, this is unconstitutional.

[00:25:40] Speaker 03:
And that's the respect in which this is a challenge to the rule here if it's applied to not give the agency the final say.

[00:25:51] Speaker 03:
And so the FCC argues harmless error, because we had all of one business day, not before the order, before the consideration to look at the new showing.

[00:26:05] Speaker 02:
I see a question about this, whether DISH forfeited its argument on sub delegation, because the FCC does

[00:26:12] Speaker 02:
discuss the sub delegation issue in its order.

[00:26:16] Speaker 02:
But at least in the record before us, I don't, where did Dish raise that argument before the FCC?

[00:26:23] Speaker 03:
Oh, we made the argument.

[00:26:24] Speaker 03:
I'll get you the side.

[00:26:28] Speaker 03:
It was raised in paragraph 28 in response to our raising the issue.

[00:26:35] Speaker 03:
So we very specifically raised the sub delegation issue.

[00:26:38] Speaker 02:
If they don't, the FCC doesn't cite to anything

[00:26:41] Speaker 03:
Well, you should have.

[00:26:43] Speaker 02:
So if you could give me that slide.

[00:26:44] Speaker 03:
Yeah, of course, of course.

[00:26:46] Speaker 03:
And so, but the FCC had already said that whatever this says will not affect our decision because the showing is sort of immaterial after having requested.

[00:27:00] Speaker 03:
Now, the harmfulness of the error is shown when we were finally able to analyze the second showing.

[00:27:07] Speaker 03:
That was after the order, that was in March.

[00:27:11] Speaker 03:
of 2023.

[00:27:12] Speaker 03:
And what had happened was SpaceX had resorted to another trick.

[00:27:19] Speaker 03:
It had used a different exclusion angle than used in the ITU software.

[00:27:24] Speaker 03:
And SpaceX tries to demote this to a hyper-technical matter, but it has a very simple effect.

[00:27:32] Speaker 03:
The calculation includes only power from those satellites that transmit hardly any power at all.

[00:27:38] Speaker 03:
So it's very easy

[00:27:40] Speaker 03:
then show that the system does not exceed the power limits.

[00:27:44] Speaker 03:
And SpaceX trumpets three times this famous favorable finding of the ITU.

[00:27:50] Speaker 03:
in its brief.

[00:27:51] Speaker 03:
It says it ends all speculation.

[00:27:54] Speaker 03:
It makes the issue moot.

[00:27:56] Speaker 03:
It's not for the second generation system.

[00:27:59] Speaker 03:
This is not accurate.

[00:28:02] Speaker 03:
This is a favorable finding for a system filed by SpaceX back on October 7th, 2019.

[00:28:09] Speaker 03:
And you can find that in Joint Appendix 264.

[00:28:17] Speaker ?:
I see.

[00:28:18] Speaker 02:
No answer.

[00:28:20] Speaker 08:
Thank you.

[00:28:47] Speaker 06:
May it please the court.

[00:28:48] Speaker 06:
My name is James Carr.

[00:28:50] Speaker 06:
I represent the Federal Communications Commission.

[00:28:53] Speaker 06:
I will be addressing the issues raised by DISH Network, and my colleague, Rachel Proctor-May, will be addressing the issues raised by the International Dark Sky Association.

[00:29:03] Speaker 06:
So let's start with first principles here.

[00:29:06] Speaker 06:
This court has long recognized, as it stated in the Viasad opinion,

[00:29:10] Speaker 06:
that the FCC must adhere to its own rules and regulations.

[00:29:14] Speaker 06:
And that's precisely what the FCC did here.

[00:29:17] Speaker 06:
Judge Rao, as you pointed out, under the FCC's rules, the first step for an applicant for authorization of a satellite system like SpaceX's is to certify that that system will comply with the ITU's rules using the ITU software.

[00:29:36] Speaker 06:
SpaceX did exactly that.

[00:29:39] Speaker 06:
SpaceX was not required under the rules to submit any sort of technical analysis to the FCC.

[00:29:45] Speaker 06:
Nor does the FCC, as it has made clear when it first adopted the rules, the FCC itself does not engage in a technical analysis and it doesn't look at

[00:29:55] Speaker 06:
If a third party such as DISH were to present technical analysis, it doesn't look at any of that either.

[00:30:01] Speaker 06:
It treats the certification as binding.

[00:30:03] Speaker 06:
Of course, the certification remains subject to ITU verification later, which is exactly what happened in Viasat.

[00:30:13] Speaker 06:
SpaceX certified.

[00:30:15] Speaker 06:
The FCC accepted the certification.

[00:30:18] Speaker 06:
And at some later point, the ITU confirmed that SpaceX had accurately certified.

[00:30:24] Speaker 05:
What about those cases indicating that FCC can't just rubber stamp these issues with respect to the certification?

[00:30:32] Speaker 05:
In other words, self-certification can be okay standing alone, but when there's a challenge substantively to it that is not intended to cause delay or anything of that nature, why wouldn't the FCC address it even if it discounted it?

[00:30:50] Speaker 06:
Well, Your Honor, again, going to the rule, if the FCC were to require some SpaceX to grapple with DISH's study, that would be imposing additional requirements on SpaceX, which are beyond the scope of our rules.

[00:31:07] Speaker 06:
I will note, and DISH makes much of a particular case, Animal Legal Defense Fund,

[00:31:14] Speaker 06:
where it points out that the court in a particular circumstance said that it was arbitrary for the agency in that case to rely on certification.

[00:31:23] Speaker 06:
But that was a very unique case.

[00:31:25] Speaker 06:
As Judge Edwards described it, it was a smoking gun case where the agency itself had direct knowledge

[00:31:33] Speaker 06:
that the facts certified by the applicant simply were not true.

[00:31:39] Speaker 06:
It knew for a fact that the certification was false.

[00:31:42] Speaker 02:
So if the FCC had information like that, would it have to look behind SpaceX's certification?

[00:31:49] Speaker 06:
I think if it actually had certification that, or had knowledge that SpaceX was making a misrepresentation, it would have to.

[00:31:58] Speaker 06:
But again, that.

[00:32:00] Speaker 06:
you know, it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's it's

[00:32:27] Speaker 02:
own experience or perhaps from a third party.

[00:32:29] Speaker 02:
So why is their submission not adequate to cause the FCC to look behind the certification?

[00:32:37] Speaker 06:
I think again, Your Honor, if you look to past cases, and this court has recognized in the global crossing case, for example, that the commission has relied on certifications in the past, and that's a permissible exercise of its rulemaking discretion.

[00:32:57] Speaker 02:
if there's information presented to the agency that the certification may be faulty or misleading.

[00:33:03] Speaker 02:
So in what circumstances would the agency have to look at that?

[00:33:09] Speaker 06:
I think the Animal Legal Defense Fund case gives you a circumstance.

[00:33:13] Speaker 06:
That would be where the agency knows.

[00:33:15] Speaker 06:
It may well be, Your Honor,

[00:33:18] Speaker 06:
If it's simply enough for a third party to present evidence that suggests that there's some problem, that ultimately defeats the purpose of certification.

[00:33:28] Speaker 06:
The certification process is designed to prevent long delays and to move the process along.

[00:33:36] Speaker 06:
Now, certification is only reasonable if there is a backup, if there is subsequent verification, which we have here.

[00:33:44] Speaker 06:
The ITU finding that is required by the commission provides backup.

[00:33:48] Speaker 06:
So ultimately, if DISH is correct that there is some sort of problem with SpaceX's certification, the ITU will make that finding, will make an unfavorable finding, and SpaceX, assuming it has commenced operations before the ITU finding,

[00:34:08] Speaker 06:
proceeds at its own risk, and if there is an unfavorable finding, SpaceX is going to have to reconfigure its operations.

[00:34:16] Speaker 02:
That's a practical question.

[00:34:17] Speaker 02:
I mean, how?

[00:34:20] Speaker 02:
So the FCC has to determine whether a satellite would have unacceptable interference, right?

[00:34:25] Speaker 02:
That's the standard.

[00:34:27] Speaker 06:
That's right, Your Honor.

[00:34:28] Speaker 02:
And under the regulation

[00:34:30] Speaker 02:
on ITU to make that fine.

[00:34:34] Speaker 02:
You rely on ITU standards.

[00:34:36] Speaker 06:
And the commission incorporated by reference the ITU rules.

[00:34:41] Speaker 06:
It made an independent termination that compliance with those rules would satisfy the obligation not to cause harm.

[00:34:49] Speaker 02:
So does the FCC do anything else, like once it gets the ITU's finding that a particular applicant meets their standards, is there anything else that the FCC does in its process to determine whether there would be unacceptable interference?

[00:35:10] Speaker 06:
No, at that point, there wouldn't be anything the commission would do.

[00:35:13] Speaker 06:
Although, keep in mind, and Judge Katz is in the bias that opinion made this point, which is that if there were evidence of actual interference, regardless of an ITU finding, if there were evidence of actual harmful interference, the commission would take action to eliminate that interference.

[00:35:35] Speaker 02:
But in the actual process, the FCC doesn't take any further action.

[00:35:40] Speaker 02:
once it has an ITU finding.

[00:35:43] Speaker 06:
That's right.

[00:35:43] Speaker 06:
And the reason, Your Honor, is that when the Commission adopted these rules, it explained that once it gets the certification, if the Commission staff were to do the sort of analysis using the ITU software and confirming

[00:36:00] Speaker 06:
the certification.

[00:36:02] Speaker 06:
That would essentially duplicate the ITU's process because we know that the ITU is going to have to do that process to ensure international coordination.

[00:36:11] Speaker 02:
I should just ask you one other factual question I didn't see.

[00:36:13] Speaker 02:
Yes.

[00:36:13] Speaker 02:
I missed this.

[00:36:15] Speaker 02:
Do we have any kind of treaty obligation to follow the ITU or is there any other kind of formal

[00:36:22] Speaker 02:
relationship that the United States has with ITU?

[00:36:25] Speaker 02:
Because I mean, there are other cases in which, you know, there's an international standard, we've joined it by treaty, something like that.

[00:36:31] Speaker 02:
Is there anything of that nature here?

[00:36:34] Speaker 02:
Does the US participate in the ITU standard setting?

[00:36:37] Speaker 02:
I'm just curious.

[00:36:38] Speaker 06:
My understanding is that, yes, there is a treaty or agreement where the United States participates in the ITU process.

[00:36:48] Speaker 02:
So there's like executive agreement?

[00:36:51] Speaker 02:
a formal agreement?

[00:36:54] Speaker 06:
I don't know for sure, Your Honor.

[00:36:55] Speaker 06:
I do know that typically the way this ITU process works is that different nations serve as member countries and they provide, when a company comes to them with an application, the FCC... It's been useful for the FCC to mention that.

[00:37:14] Speaker 02:
I mean, in terms of whether it's implementing other

[00:37:18] Speaker 02:
in actual agreements that the federal government has.

[00:37:21] Speaker 06:
I understand, Your Honor.

[00:37:22] Speaker 06:
I believe that our intervener made some reference to the treaty obligations of the United States.

[00:37:30] Speaker 06:
And I apologize that the commission didn't mention that.

[00:37:34] Speaker 06:
But the way this works is that the FCC, as the member administration, would pass on to the ITU whatever filings SpaceX made

[00:37:45] Speaker 06:
to the FCC.

[00:37:47] Speaker 06:
So it serves as a conduit, which again goes to this point about the combined file, which has been a source of great confusion in this case.

[00:37:55] Speaker 06:
The commission requested the combined file of SpaceX because it wanted to make sure that the ITU had a complete record when it examined the question of whether or not the SpaceX was in compliance.

[00:38:12] Speaker 06:
for that reason, the commission did not actually rely on the substance of that file at all.

[00:38:17] Speaker 06:
It did not look at the substance.

[00:38:19] Speaker 06:
It simply regarded when it approved this application, it relied on the certification.

[00:38:25] Speaker 06:
It didn't consider the substance, and therefore the ex parte rules, the FCC's ex parte rules did not apply because the filing did not go to the merits or the outcome of the proceeding, did not influence the commission's judgment anyway, and therefore

[00:38:42] Speaker 06:
there was no need for the commission to make that available for someone else to comment.

[00:38:47] Speaker 06:
And as we've said before, the notion of third party comments on this going to interference analysis is inconsistent with the way the rule is structured.

[00:39:00] Speaker 06:
The first step is we accept the certification once a party has certified.

[00:39:06] Speaker 06:
And we have reason to believe that the certification is accurate because, among other things,

[00:39:12] Speaker 06:
Parties that certify, if they are wrong, are subject to severe penalties.

[00:39:17] Speaker 06:
For one thing, SpaceX would have to reconfigure its system.

[00:39:20] Speaker 06:
For another thing, there could be fines and penalties for inaccurate certifications.

[00:39:27] Speaker 06:
Well, we would find out from the ITU.

[00:39:29] Speaker 06:
The ITU will confirm the certification.

[00:39:33] Speaker 06:
So if the ITU makes an unfavorable finding, then that would mean that

[00:39:41] Speaker 06:
that the certification was incorrect, that would require SpaceX to alter its operations to come into compliance with the limits.

[00:39:50] Speaker 06:
And it could conceivably result in further penalties.

[00:39:53] Speaker 05:
So you're suggesting that FCC is not involved in that process of looking at substantive information that actually challenges the certification process that's supposed to go through ITU.

[00:40:03] Speaker 06:
That will go through the ITU under the way the rule is structured.

[00:40:06] Speaker 06:
That's right, Your Honor.

[00:40:08] Speaker 06:
That the ITU will take the data files that have been submitted by the commission on behalf of the applicant, SpaceX.

[00:40:18] Speaker 06:
It will use the software and apply the data files, apply the software to the data files and make a determination as to whether or not it complies.

[00:40:27] Speaker 05:
And what's actually involved in ITU running the software?

[00:40:30] Speaker 05:
Because we have this issue about should we evaluate

[00:40:33] Speaker 05:
this information singly or jointly?

[00:40:38] Speaker 06:
Well, the commission itself made a determination that it conditioned this authorization on SpaceX attaining a finding from the ITU that explicitly states that the ITU has considered the joint effect of SpaceX's operations.

[00:40:56] Speaker 06:
And that's because I think the commission was concerned, and it wanted to clarify this, that

[00:41:04] Speaker 06:
The comprehensive effect of the satellite system was going to be taken into account, not that you were looking at 18 separate filings.

[00:41:12] Speaker 06:
The commission addressed, I believe it was at paragraph 31 of the order, the argument that DISH made that somehow the 18 separate filings were an attempt by SpaceX to manipulate the system.

[00:41:28] Speaker 06:
SpaceX explained, and the commission accepted the explanation, that the ITU staff itself had suggested that sort of segmentation.

[00:41:36] Speaker 06:
And the reason for that was, again, this goes to a different analysis.

[00:41:41] Speaker 06:
This goes to power flux density as opposed to equivalent power flux density.

[00:41:48] Speaker 06:
When the ITU examines that particular

[00:41:53] Speaker 06:
issue, which involves the potential for interference to terrestrial operations, it needs to have the file segmented in order to examine that.

[00:42:04] Speaker 06:
That's what, and I'm sorry, go ahead, Your Honor.

[00:42:06] Speaker 05:
Help me out with what potentially could be a conflict in the order, because it says FCC order requires SpaceX to get a finding from the ITU that expressly indicates that the ITU has considered the joint effect

[00:42:19] Speaker 05:
of SpaceX's ITU filings.

[00:42:22] Speaker 05:
But then the order states, we also find that SpaceX's segmentation of its system into 18 separate ITU filings is reasonable.

[00:42:31] Speaker 06:
And for just the reason I was explaining, Your Honor, that SpaceX consulted with ITU staff, and ITU staff told SpaceX that it preferred segmentation.

[00:42:46] Speaker 06:
precisely for the analysis of the separate question of power flux density.

[00:42:50] Speaker 06:
But as to the power flux density, I'm sorry, your honor, go ahead.

[00:42:54] Speaker 07:
I guess he wanted to see the data both ways sliced into 18 and then combination.

[00:43:00] Speaker 06:
I think that's right, although I don't know that that

[00:43:04] Speaker 06:
the ITU made that entirely clear, and that's part of the reason why the commission asked as a follow-on for SpaceX to submit a combined filing that could then be run through the system that would confirm that the joint effect of the system

[00:43:24] Speaker 06:
would be in compliance with the relevant power limits.

[00:43:27] Speaker 05:
But then tell me, with the sub delegation issue, like who's actually making the decision about joint effect versus... Sure, Your Honor.

[00:43:34] Speaker 06:
Okay.

[00:43:36] Speaker 06:
Remember, when we're talking about sub delegation, we're talking about sub delegation of regulatory authority here.

[00:43:42] Speaker 06:
The FCC exercised its regulatory authority in the first instance when it made an independent judgment to incorporate by reference into its rules the ITU's power limits.

[00:43:54] Speaker 06:
And it made a determination that compliance with those power limits would satisfy the obligation not to cause unacceptable interference.

[00:44:03] Speaker 06:
Under this process, it then relies on input from the ITU, which

[00:44:11] Speaker 06:
This court described in 2004 U.S.

[00:44:14] Speaker 06:
telecom case as legitimate outside party input in two respects.

[00:44:19] Speaker 06:
First, the ITU finding is a reasonable condition on the authorization, because after all, the whole point is we want to confirm that

[00:44:30] Speaker 06:
These folks are in compliance with the power limits so that they won't cause harmful interference.

[00:44:34] Speaker 06:
The ITU finding does that.

[00:44:36] Speaker 06:
So it's a reasonable condition on the authorization.

[00:44:40] Speaker 06:
Second, we would argue that the ITU's information provided to the commission amounts to fact gathering.

[00:44:46] Speaker 06:
It's factual information.

[00:44:48] Speaker 06:
It addresses the factual question of is SpaceX in compliance with the ITU's power limits or not.

[00:44:55] Speaker 06:
And under this court's case law, under the U.S.

[00:44:58] Speaker 06:
telecom case, that is an acceptable use of outside party input and it is not an improper sub-delegation.

[00:45:08] Speaker 07:
What was the point of directing SpaceX to release the information after the fact?

[00:45:19] Speaker 06:
The disclosure requirement was a condition that the Commission adopted as part of its decision to grant the partial waiver of the rules to allow SpaceX to go ahead and operate before it obtained an ITU finding.

[00:45:36] Speaker 06:
It's my understanding that was

[00:45:38] Speaker 06:
The point of that was to provide transparency to outside parties.

[00:45:42] Speaker 06:
They could get the information.

[00:45:44] Speaker 06:
They could run it using the software and make a determination for themselves as to whether or not it's satisfied.

[00:45:53] Speaker 06:
I think it was meant to put people's minds at ease.

[00:45:56] Speaker 06:
Now, DISH took the information, ran it through the software, but it looked at

[00:46:04] Speaker 06:
uh, SpaceX's inputs and it said, well, SpaceX got this wrong.

[00:46:08] Speaker 06:
So it altered SpaceX's inputs.

[00:46:10] Speaker 06:
I don't necessarily think that that dish disagrees with the notion that if the ITU were to take SpaceX's inputs as is random through the software, they, they would show compliance.

[00:46:25] Speaker 06:
Uh, dish has a quarrel with SpaceX about how it, it, uh, it put together the inputs and, uh,

[00:46:33] Speaker 07:
But be that as it may, I suppose they look at the data or some other party looks at the data and says, well, this does not show compliance.

[00:46:42] Speaker 07:
Can they present an argument to the ITU?

[00:46:47] Speaker 06:
They cannot present an argument to the ITU, but what they can do and what DISH has done in its March 6th letter, March 6th, 2023 letter, which is in the joint appendix,

[00:46:59] Speaker 06:
Dish went to the commission and said, FCC, we have evidence that this is out of compliance, that SpaceX hasn't complied with the ITU rules in putting together its input, and you, FCC, as the member, relevant administration, should

[00:47:20] Speaker 06:
make clear to the ITU that this is the problem.

[00:47:24] Speaker 06:
So they would have the opportunity to come to the FCC and ask the FCC to go to the ITU and raise that issue.

[00:47:33] Speaker 07:
And they did.

[00:47:35] Speaker 06:
uh dish has dish has done that uh the fcc has has not yet responded to to that request i think part of what's going on is probably the fcc is waiting to see uh what the itu is going to do with the file and whether and and and whether in fact it will confirm compliance okay isn't that peculiar to me if they

[00:48:05] Speaker 07:
If they wait till the ITU to confirm compliance before forwarding a letter that says that for reasons that you may not have thought about, it's out of compliance.

[00:48:16] Speaker 06:
Well, I think if I understand it correctly.

[00:48:20] Speaker 06:
The disagreement between SpaceX and DISH, as articulated in the March 6 letter, goes to how the ITU's particular rules apply for putting together the input.

[00:48:35] Speaker 06:
So I think the assumption is that once the ITU takes a look at the input files,

[00:48:42] Speaker 06:
If it has a different view, if it shares Dish's view that there is a problem with those files, that will come out in the analysis.

[00:48:55] Speaker 07:
But they would have to make that determination without the benefit of Dish's files.

[00:49:02] Speaker 06:
That's right, Your Honor, yes.

[00:49:04] Speaker 06:
But they will have all of the other files.

[00:49:07] Speaker 06:
And part of Dish's argument is that

[00:49:09] Speaker 06:
SpaceX's combined file is somehow different from the system it was describing in the 18 separate filings.

[00:49:17] Speaker 06:
And that it used a different avoidance angle, a technical term that essentially relates to the way that transmission beam is directed to an Earth station.

[00:49:34] Speaker 06:
And the potential for interference is related to that.

[00:49:38] Speaker 06:
Again, I think the information is all in front of the ITU, and if it believes there is a problem, presumably it's going to find that problem.

[00:49:51] Speaker 05:
Now, when the FCC incorporates these ITU standards into its regulations, does that also include any kind of future discretionary decisions that the ITU may be applying with respect to standards?

[00:50:05] Speaker 06:
Well, Your Honor, if the ITU were to alter its or amend its standards, and my understanding is there is at least there is a proposal

[00:50:17] Speaker 06:
under consideration to actually raise the power levels.

[00:50:21] Speaker 06:
But if that were to happen, the commission's incorporation by reference refers specifically to the 2016 version of the rule.

[00:50:31] Speaker 06:
So the commission would have to go through another procedure to specifically adopt the new power limits.

[00:50:42] Speaker 06:
So this isn't a process where if the ITU keeps changing,

[00:50:45] Speaker 06:
its rules, the commission would just blindly apply them.

[00:50:49] Speaker 06:
This is focused, the incorporation was to a specific rule adopted at a specific time.

[00:50:56] Speaker 05:
And I just want to be sure on that expert report, you're saying the FCC would not be looking at the challenge.

[00:51:03] Speaker 05:
Only the ITU would, and then it would either give certification or not.

[00:51:08] Speaker 06:
The FCC wouldn't look at dishes materials or any third parties materials.

[00:51:16] Speaker 06:
And the ITU, just to be clear,

[00:51:18] Speaker 06:
What the ITU has before it is the SpaceX files that the FCC has passed on.

[00:51:24] Speaker 06:
It does not have DISH's competing report.

[00:51:32] Speaker 06:
But what the ITU does have, of course, once it has SpaceX's files in front of it, it can apply its software.

[00:51:40] Speaker 06:
And if it finds

[00:51:41] Speaker 06:
As Dish claims that SpaceX has put together its files in a way that is contrary to the ITU's rules and procedures, the ITU can make that finding.

[00:51:55] Speaker 02:
Do you believe that

[00:51:57] Speaker 02:
So did Dish preserve this issue before the FCC, in your view?

[00:52:02] Speaker 06:
Which issue under the sub-delegation?

[00:52:05] Speaker 06:
As I understand it, and I did review this issue, I don't have the site in front of me.

[00:52:13] Speaker 06:
Mr. Michelopoulos can provide it, but I am relatively certain that Dish did preserve this issue because it

[00:52:21] Speaker 06:
It learned from the Viasat case where it didn't preserve the issue and tried to raise it.

[00:52:26] Speaker 06:
And the court quite rightly dismissed that claim under Section 405 of the Communications.

[00:52:32] Speaker 06:
We don't believe that that sort of forfeiture happened here, which is why we didn't raise the issue.

[00:52:40] Speaker 06:
If there were no further questions, I'm sorry.

[00:52:43] Speaker 06:
Go ahead.

[00:52:43] Speaker 05:
Go ahead, your honor.

[00:52:45] Speaker 05:
Does FCC have no duty to look at any information that was undermined ITU self-certification?

[00:52:57] Speaker 06:
Does the commission have any duty to, again, your honor, I think it's only

[00:53:05] Speaker 06:
I think the duty here would be consistent with the Animal Legal Defense Fund case if the commission knew based on its own experience with SpaceX, that SpaceX was making a misrepresentation here, it could take action.

[00:53:18] Speaker 06:
It does not look at third party studies or reports.

[00:53:23] Speaker 05:
And I think it's relevant in... That's inclusive of waiving any pre-certification requirement or pre-approval of requirement.

[00:53:34] Speaker 06:
I'm not sure if I understand your question.

[00:53:36] Speaker 05:
It seems like there's kind of two steps, like you would have your self-certification, but then you would also, before the launch actually occurs, there's another step in there, so you wouldn't even look at it then before the launch.

[00:53:50] Speaker 06:
We would not look at it before the launch, but

[00:53:53] Speaker 06:
Again, as the commission has emphasized, SpaceX would proceed at its own risk under the partial waiver because there's a possibility if it launches and then the ITU later makes an unfavorable finding, then SpaceX will have to reconfigure its system to come into compliance.

[00:54:15] Speaker 05:
It just takes care of itself in the process.

[00:54:17] Speaker 06:
Yes, which is precisely what the court found in Viasat.

[00:54:24] Speaker 06:
And Dish claims that this case raises a new issue and that it claims that it's raising an issue that this waiver has left it unprotected for a period of time.

[00:54:38] Speaker 06:
But if you go back to Vyasat, the court actually considered that argument because Dish said a future finding by the ITU doesn't do anything to help us if there is present interference.

[00:54:51] Speaker 06:
And the court said, among other things, first of all,

[00:54:55] Speaker 06:
The certification itself provides some assurance of no harmful interference.

[00:55:01] Speaker 06:
Second, if there is an unfavorable finding at some future point, that will require SpaceX to come into compliance.

[00:55:09] Speaker 06:
Third, in the meantime, while ITU review is pending, there are still regulatory channels available if there is actual interference.

[00:55:21] Speaker 06:
for a party experiencing interference to report it to the FCC, and the FCC and its Enforcement Bureau would then take appropriate action to eliminate that interference.

[00:55:33] Speaker 02:
I put you up here for a long time.

[00:55:34] Speaker 02:
Any further questions?

[00:55:38] Speaker 02:
No, thank you.

[00:55:38] Speaker 04:
Thank you.

[00:55:38] Speaker 04:
Thank you, Your Honors.

[00:55:55] Speaker 09:
Good morning, and may it please the court.

[00:55:57] Speaker 09:
I'm Rachel Proctor-May for the FCC, and I'll be addressing the issues that are raised by the International Dark Sky Association.

[00:56:04] Speaker 09:
And if I could, I would like to proceed straight to the merits.

[00:56:08] Speaker 09:
The standard, as Your Honor recognized, is whether there may be a significant effect.

[00:56:13] Speaker 09:
The standard is not whether there may be any effect at all, because that would set a bar that is so low as to be meaningless.

[00:56:22] Speaker 09:
And the commission reasonably concluded and reasonably explained that as to each of the categories of effects here, that standard was not met.

[00:56:31] Speaker 09:
As to astronomy in the night sky, the commission looked in detail at the record, both for the NEPA question and under its obligation to ensure that this license was in the public interest.

[00:56:42] Speaker 09:
And it assessed the advanced technologies in the SpaceX Gen 2 satellites, which were specifically engineered to minimize brightness.

[00:56:52] Speaker 09:
and it imposed a number of license conditions that were aimed at further minimizing effects on astronomy in the night sky.

[00:57:00] Speaker 09:
As to reentry effects, the Commission reasonably relied on two studies that were commissioned by the European Space Agency, and it explained why it relied on those studies.

[00:57:12] Speaker 09:
And then, of course, as to launch emissions, the Commission relied on the

[00:57:19] Speaker 09:
a series of environmental assessments that the Federal Aviation Administration had prepared, concluding in findings of no significant effects.

[00:57:28] Speaker 02:
I know the Commission said it wasn't resolving the question of whether NEPA reaches into space, but isn't that a threshold inquiry?

[00:57:37] Speaker 02:
If we're going to reach the merits, I guess you don't want to talk about standing.

[00:57:41] Speaker 02:
I mean, if we found that there was standing here and we reached the merits, I mean, isn't that a threshold question we have to decide?

[00:57:48] Speaker 09:
So, I mean, as you recognize, for purposes of this appeal, NEPA applies because that's what the commission assumed without deciding.

[00:57:57] Speaker 02:
But we don't have to assume the same thing.

[00:58:01] Speaker 09:
Right.

[00:58:02] Speaker 09:
We don't see that as a threshold jurisdictional question.

[00:58:06] Speaker 09:
It's really a separate statutory question.

[00:58:08] Speaker 09:
So the question that the commission answered is whether there may be a significant effect.

[00:58:14] Speaker 09:
And so because there was no significance, it didn't have to go to the second step and ask whether any of the effects of the space activities are effects within the scope of NEPA in the first place.

[00:58:27] Speaker 09:
So one of those questions doesn't necessarily have to precede the other.

[00:58:31] Speaker 09:
I think NEPA does apply in space.

[00:58:34] Speaker 09:
The commission didn't reach that question.

[00:58:37] Speaker 09:
You're not recognized.

[00:58:38] Speaker 09:
Yeah, it recognized that there are novel issues that are raised by that question.

[00:58:43] Speaker 09:
For example, is sunlight as a source of reflectivity within the scope of NEPA?

[00:58:50] Speaker 09:
How does the extra territoriality principle apply?

[00:58:54] Speaker 09:
What do you do with effects that are purely in space, such as orbital debris?

[00:58:58] Speaker 09:
But again, the commission did not reach that question.

[00:59:02] Speaker 02:
Um, can you just help me understand the redressability question?

[00:59:06] Speaker 02:
Um, because so, so the FCC is, you know, one of the many regulatory entities that

[00:59:13] Speaker 02:
that regulates these SpaceX satellites, right?

[00:59:17] Speaker 02:
So if, I mean, how is there redressability?

[00:59:21] Speaker 02:
I mean, if the FCC were to do an environmental assessment as the IDA petitioners want, and say the license wasn't granted, would that redress their harms, the harms of light pollution from a satellite already having been launched into space?

[00:59:42] Speaker 09:
So as you recognize, there are two licenses here.

[00:59:45] Speaker 09:
At least two.

[00:59:47] Speaker 09:
At least two.

[00:59:49] Speaker 09:
The Federal Aviation Administration licenses the launch of the rockets that carry the satellites to space.

[00:59:56] Speaker 09:
And so then once it's up there, the satellites are released into space.

[01:00:00] Speaker 09:
And what the Federal Communication Administration licenses is deploying and operating those satellites.

[01:00:10] Speaker 09:
the uh, the space X satellites wouldn't be able to be used to transmit communications, which is their purpose.

[01:00:18] Speaker 02:
So if they were sent up there, would they be dark then?

[01:00:22] Speaker 02:
Like if the FCC didn't, I mean, I mean, I guess, because I think would not then redress their problem.

[01:00:29] Speaker 02:
Well, I think

[01:00:32] Speaker 09:
I think the question would be whether SpaceX would have a reason to send them up in the first place if they couldn't be used for anything.

[01:00:39] Speaker 02:
And I don't know whether they could be used for anything.

[01:00:41] Speaker 02:
Well, but given the way that the official certifications work, presumably they may launch into space before everything is finalized with the FCC.

[01:00:48] Speaker 02:
And if the FCC determined not to license or to take back their license, would that redress their harm?

[01:00:58] Speaker 09:
If the, I'm sorry, your honor, if the license were rescinded at some point in the future.

[01:01:04] Speaker 02:
When the satellites are launched.

[01:01:06] Speaker 02:
So the satellite is launched and then say the IT user, you know, something comes back or they just determined that there are environmental effects.

[01:01:16] Speaker 02:
Right.

[01:01:17] Speaker 02:
So they revoke a license, pull back a license.

[01:01:21] Speaker 02:
Would that affect their harms?

[01:01:23] Speaker 09:
I mean, to the extent that they could that SpaceX could no longer use the satellites for these communications.

[01:01:31] Speaker 09:
Yes, the satellites would still be up there.

[01:01:33] Speaker 09:
And there are about 1500 satellites that are up there already.

[01:01:36] Speaker 09:
There was no stay in this case.

[01:01:38] Speaker 09:
And so the satellites are already being launched.

[01:01:41] Speaker 02:
And so the FCC license were to be taken back with that.

[01:01:47] Speaker 02:
prevent the light pollution?

[01:01:48] Speaker 02:
Would the satellites have to come down?

[01:01:51] Speaker 02:
I mean, the redressability here is very murky.

[01:01:57] Speaker 09:
Without wanting to make association arguments for them, I think standing is typically assessed at the time of the action.

[01:02:09] Speaker 09:
So I'm not sure if the fact that it might be revoked in the future undermines their standing.

[01:02:16] Speaker 02:
It's not that it would be revoked in the future, but what they're seeking essentially is a NEPA analysis that might cause the agency to make a different decision.

[01:02:25] Speaker 02:
And so the redressability, they have to show some causal link between doing environmental assessment and that being able to redress their harms, which one of their harms is light pollution.

[01:02:45] Speaker 09:
So, I mean, there's two ways that this could turn out and there could just be a remand without vacatur, which we agree with SpaceX would be appropriate if we even got there, which obviously I don't think that we should.

[01:02:57] Speaker 09:
But if there were a constitutional better.

[01:03:00] Speaker 09:
Yeah.

[01:03:02] Speaker 09:
If the license were vacated, then I don't think anything would require the satellites to be taken down.

[01:03:12] Speaker 09:
I do not think they could be used for their intended purpose.

[01:03:15] Speaker 02:
And if they were used, would they no longer create light pollution?

[01:03:22] Speaker 09:
I think that's a very difficult technical question, because a lot of what affects the light pollution is metal satellites that have specific coatings on them that have specific reflective characteristics, which of course were engineered to be very minimally reflective.

[01:03:40] Speaker 09:
And they also operate in certain ways to minimize reflectivity.

[01:03:44] Speaker 09:
So there's a big solar array.

[01:03:46] Speaker 02:
It sounds like it turns on whether they're transmitting.

[01:03:49] Speaker 02:
It's just the satellite itself.

[01:03:51] Speaker 02:
That's correct.

[01:03:52] Speaker 02:
So maybe there isn't redress ability here.

[01:03:54] Speaker 09:
We haven't addressed standing.

[01:03:57] Speaker 09:
So we don't have a problem with the court deciding on standing.

[01:04:04] Speaker 05:
Now, would one causal link be that the FCC could have had more stringent conditions in terms of mitigation?

[01:04:14] Speaker 09:
The commission definitely has a lot of options at its disposal if the gen two satellites don't perform as they're expected or if the brightness mitigating technologies don't work as expected.

[01:04:29] Speaker 09:
The commission could enforce its

[01:04:31] Speaker 09:
The conditions that it imposed, it could modify or even revoke in a very extreme circumstance.

[01:04:39] Speaker 09:
The license, I don't think anyone thinks that would happen here, but it is an option and it can impose rules.

[01:04:44] Speaker 09:
So there are all sorts of things that could happen in the future that might affect how

[01:04:50] Speaker 09:
that might affect how these satellites perform.

[01:04:54] Speaker 09:
But what the commission did conclude in this case is that, in this order, is that this set of mitigating technologies and license conditions would be sufficient to avoid significant effects.

[01:05:09] Speaker 09:
And it relied on an extensive record.

[01:05:12] Speaker 09:
It explained why it was relying on what it relied on.

[01:05:15] Speaker 09:
And that's all that

[01:05:17] Speaker 09:
is necessary to uphold the order.

[01:05:19] Speaker 09:
And we would ask that the court do that.

[01:05:23] Speaker 09:
And if your honors have no further questions.

[01:05:26] Speaker 09:
Any further questions?

[01:05:28] Speaker 04:
No, thank you.

[01:05:29] Speaker 04:
Thank you.

[01:05:45] Speaker 00:
May it please the court, Pratik Shaffer, intervener, SpaceX, I'm happy to address either set of issues.

[01:05:52] Speaker 00:
First, the NEPA or the DSH, if the court has a preference.

[01:05:57] Speaker 00:
And then let me start with the dish issues.

[01:06:00] Speaker 00:
I think that your honor Judge Rao has it right.

[01:06:04] Speaker 00:
The real beef is with the FCC rulemaking in 2017 that adopted the ITU certification verification methodology.

[01:06:14] Speaker 00:
But this court made clear just last year in Viasat that dish cannot collaterally attack

[01:06:20] Speaker 00:
that regime and licensing, and they have several different arguments that they try to say is not a collateral attack, but each of them boils down to a collateral attack on the regime.

[01:06:30] Speaker 00:
If you actually apply the 2017 rulemaking as it's written, this case is how it would transpire and it did transpire.

[01:06:39] Speaker 00:
You have step one, the DISH self-certification, and by the way, I'm sorry, the SpaceX self-certification,

[01:06:46] Speaker 00:
And SpaceX made the self-certification on both submissions on the 18 separate files first, said, look, that satisfies it.

[01:06:55] Speaker 00:
And then when the commission said, actually, we want to make sure that you're combined in one file does it, they made another self-certification that they put it together as one file, ran the ITU validation software, and certified it is.

[01:07:08] Speaker 00:
And FCC relied on that certification, the very one that DISH is asking for, that it be one aggregate file.

[01:07:16] Speaker 02:
How are DISH's results turning out differently?

[01:07:19] Speaker 02:
Can you maybe shed some light on that?

[01:07:22] Speaker 00:
Yeah.

[01:07:22] Speaker 00:
So again, this is not in the record that's before you, because they wrote this in a March 6, 2023.

[01:07:29] Speaker 00:
But it is in the JA, if you want to see that letter.

[01:07:33] Speaker 00:
And you can confirm this with DISH's counsel.

[01:07:37] Speaker 00:
But my understanding is they don't actually disagree.

[01:07:41] Speaker 00:
that the files that SpaceX submitted will get an ITU validation because SpaceX ran the software, the same software, and got the green, let's just say green light, right?

[01:07:51] Speaker 00:
They got the green light and they don't dispute that in their March 2023 letter that, in fact, it does comply with ITU validation software.

[01:08:00] Speaker 00:
My understanding of their objection is they say look in the input files SpaceX contrary to their reading of ITU rules use different angles for the mask angle and the avoidance angle and say that angle has to be the same and SpaceX use different angles now SpaceX.

[01:08:16] Speaker 00:
will tell you, no, you don't have to use the same angles.

[01:08:21] Speaker 00:
And in fact, ITU has approved many different constellations that don't, in fact, use the same angles.

[01:08:28] Speaker 00:
And it doesn't make sense to use the same angles here based on how SpaceX runs its system.

[01:08:33] Speaker 00:
That's obviously a technical disagreement based upon interpretation of ITU rules based on their own.

[01:08:40] Speaker 02:
What's the disagreement about what inputs go into the ITU software?

[01:08:44] Speaker 00:
of the inputs that are in the files, they read the IT rules differently.

[01:08:50] Speaker 00:
This is like the quintessential reason why the FCC in its 2017 rulemaking said, we are going to let the ITU apply its own software to the files.

[01:09:01] Speaker 00:
If they are right,

[01:09:02] Speaker 00:
that the ITU rules require the same angles, obviously ITU will see that in the files that they use and they can adjust it.

[01:09:10] Speaker 00:
And ITU will make that known.

[01:09:13] Speaker 00:
And so this is exactly the sort of thing that FCC said, and it explained this.

[01:09:19] Speaker 00:
It had a full notice and comment rulemaking in 2017.

[01:09:22] Speaker 00:
It got a lot of favorable comments.

[01:09:24] Speaker 00:
It got a lot of objections.

[01:09:25] Speaker 00:
DISH did not participate, didn't participate, didn't submit comments.

[01:09:29] Speaker 00:
In that 2017 rulemaking, at the end of the day, the commission said, look, we're not going to even ask for the technical data files because if there are technical disputes, the ITU, which does this not only for the United States constellations, but it does it for every country.

[01:09:45] Speaker 00:
ITU is a UN agency.

[01:09:48] Speaker 00:
And it said, look, it makes sense.

[01:09:50] Speaker 00:
Rather than have variation country by country and applicant by applicant space, the US doesn't have a monopoly on space.

[01:09:58] Speaker 00:
There are foreign licensed satellite constellations.

[01:10:01] Speaker 00:
There are US licensed constellations.

[01:10:03] Speaker 00:
And that's why it makes sense to have an international, not only adopt the international standards, but it's common sense that you would want the entity

[01:10:11] Speaker 00:
created those standards that's fielding applications from countries around the world to be the one that runs it, so it runs it in a uniform manner and resolves these sorts of disputes.

[01:10:21] Speaker 02:
Can you answer the question I asked FCC Council, which is, is there a formal relationship, like legal relationship, between the US and the ITU by treaty or executive agreement?

[01:10:32] Speaker 00:
Yeah, so I am not aware of a Senate-confirmed treaty.

[01:10:38] Speaker 02:
Some executive agreement.

[01:10:39] Speaker 00:
Right.

[01:10:40] Speaker 00:
What I do know is that this rulemaking obviously has the United States, through the FCC's rulemaking, makes those ITU standards binding.

[01:10:50] Speaker 00:
They do have participants that participate in the conventions that come up with these ITU standards.

[01:10:56] Speaker 00:
I don't know formally whether there is a formal agreement beyond what FCC has agreed to to make their standards binding.

[01:11:07] Speaker 05:
Was there a resolution to the issue when you were talking about the angles with respect to the 2016 ITU decision before the FCC adopted it?

[01:11:16] Speaker 00:
The 2016, no.

[01:11:17] Speaker 00:
In the 2017 rulemaking proceeding, as I understand it, that was when FCC said we're going to incorporate the ITU standards, and then we're going to have the verification done by ITU, presumably,

[01:11:34] Speaker 00:
then ITU would adopt whatever procedural rules it has and apply those to whatever verification.

[01:11:41] Speaker 00:
But I don't recall any specific discussion about that particular rule that DISH contends SpaceX is interpreting incorrectly and SpaceX contends DISH is interpreting incorrectly.

[01:11:54] Speaker 00:
If there are no other questions on the DISH aspect of the case, I'm happy to shift to the NEPA aspect.

[01:12:03] Speaker 00:
of the case.

[01:12:04] Speaker 00:
And there, Your Honor, I think it's pretty straightforward.

[01:12:09] Speaker 00:
The court is not assessing de novo, whether all satellite constellations, past and future, pose any conceivable risk of any impact.

[01:12:17] Speaker 00:
The regulatory framework here is pretty clear.

[01:12:20] Speaker 00:
There's a categorical exclusion.

[01:12:21] Speaker 00:
The agency, again, did that through notice and comment rulemaking.

[01:12:25] Speaker 00:
And again, you heard counsel for

[01:12:28] Speaker 00:
IDA call that an antiquated assessment.

[01:12:31] Speaker 00:
Again, you have essentially what's a collateral attack on the categorical exclusion.

[01:12:35] Speaker 00:
The categorical exclusion says these sorts of activities ordinarily don't have a significant impact.

[01:12:42] Speaker 00:
That's step one.

[01:12:43] Speaker 00:
The FCC regulations then allow a challenger to overcome that categorical exclusion, but it can only do so if it, quote,

[01:12:51] Speaker 00:
sets forth in detail, end quote, that's the FCC regulation, how the particular action at issue may still cause a significant impact, notwithstanding the categorical exclusion determination.

[01:13:05] Speaker 00:
So that means here, IDA had to show why the 7,500 satellites that were actually approved based on its record with all the mitigation and compliance conditions,

[01:13:16] Speaker 00:
It could still have a significant environmental impact.

[01:13:20] Speaker 00:
And then we get to step three.

[01:13:21] Speaker 00:
That's traditional APA determination then.

[01:13:24] Speaker 00:
Hey, did the agency look at the evidence?

[01:13:27] Speaker 00:
Did it consider it?

[01:13:28] Speaker 00:
Was it arbitrary and capricious in saying whether it satisfied that standard or not?

[01:13:33] Speaker 00:
And here, we're not even close to the arbitrary and capricious line.

[01:13:36] Speaker 00:
It looked at all the evidence.

[01:13:38] Speaker 00:
It made a considered judgment.

[01:13:40] Speaker 00:
And they're legal.

[01:13:41] Speaker 00:
They do make one legal argument beyond arbitrary capricious, which is to say,

[01:13:45] Speaker 00:
that you can't look at mitigation.

[01:13:47] Speaker 00:
They say mitigation is indicative that there will be a significant environmental effect, but that's contradicted directly by the CEQ regulation on NEPA.

[01:13:57] Speaker 00:
And CEQ is the body that is primarily in charge of NEPA.

[01:14:01] Speaker 00:
That's a 40 CFR 1501.4B1.

[01:14:06] Speaker 00:
And that regulation says, and I'll just read it to you,

[01:14:10] Speaker 00:
If extraordinary circumstance is present, the agency nevertheless may categorically exclude the proposed action

[01:14:18] Speaker 00:
if the agency determines that there are circumstances that lessen the impacts or other conditions sufficient to avoid significant effects.

[01:14:27] Speaker 00:
That's precisely the determination that FCC made here.

[01:14:31] Speaker 00:
They said, look, with all the mitigating conditions, including the ones that we're adding to the license, here you're not going to get the significant effects.

[01:14:40] Speaker 00:
And that is the record on which this court should assess it.

[01:14:48] Speaker 05:
Thank you, Your Honor.

[01:14:56] Speaker 02:
We'll have our bottle from Mr. Mudd.

[01:15:00] Speaker 01:
Thank you, Your Honors.

[01:15:02] Speaker 01:
I'd like to briefly address a few points.

[01:15:04] Speaker 01:
One, we are considering or talking about significant effects, not just the facts.

[01:15:09] Speaker 01:
And while there was a comment made with respect to the categorical exclusion, the attack on that's not necessary here.

[01:15:18] Speaker 01:
But I'd really like to focus back on the redressability, and particularly, Judge Rao, the questions that you've raised.

[01:15:27] Speaker 01:
To begin with, the substantive harm for IDA arising from the unlawful order is the allowing significant environmental effects, principally the diminishment of the dark skies, and thereby affecting its interests in protecting the dark skies.

[01:15:42] Speaker 01:
Clearly, these fall within the definition of human environment.

[01:15:45] Speaker 01:
And the NEPA analysis extends the cultural and aesthetic issues and focuses on the present and future generations of Americans.

[01:15:54] Speaker 01:
Now, you've raised two issues.

[01:15:56] Speaker 01:
Essentially, part of your question, I think, is even if

[01:16:02] Speaker 01:
We look at this and the FCC reverses its order, which I would first say that the redressability issue largely can be overcome under wild earth by simply analysis, is the challenger's injury redressable if the agency should change its mind, if it adequately considers the environmental concerns?

[01:16:22] Speaker 01:
And we argue, yes, it could deny the application,

[01:16:25] Speaker 01:
It could order additional mitigation requirements reaching the ideal magnitude that astronomers would like in terms of brightness, could limit the number of satellites, and thereby minimize the impact.

[01:16:39] Speaker 01:
But what are those satellites already launched?

[01:16:42] Speaker 01:
One, they could not launch anymore.

[01:16:44] Speaker 01:
But as to those that are already up there, if they're not operating on, just as SpaceX does on orbit rise and turn the satellites so that the solar reflectivity is significantly minimized because they're not yet using it, they could do those, do the same thing with the satellites that are already in orbit should the FCC change its mind.

[01:17:07] Speaker 01:
And I see my time is out.

[01:17:09] Speaker 01:
So I thank you all.

[01:17:11] Speaker 01:
for, uh, hearing our arguments.

[01:17:15] Speaker 03:
Thank you, Mr. May please the court and let me start with J. A 2 30 is where actually space X rebots are non delegation arguments for some reason and then and sides to a September 21 letter that we find for some reason the letter is in the record, but did not find in the joint appendix.

[01:17:37] Speaker 02:
there's a letter where you raise that issue?

[01:17:39] Speaker 03:
Yes, yes, yes.

[01:17:41] Speaker 02:
And so- Submit that to the court.

[01:17:43] Speaker 02:
If you could submit that to the court.

[01:17:45] Speaker 03:
Of course.

[01:17:45] Speaker 03:
So on subdelegation and rubber stamping, I heard neither counsel for the FCC nor counsel for SpaceX try to rebut the fact that what they presented as the ITU favorable finding that resolves the issue

[01:18:02] Speaker 03:
makes it moot is for the wrong system.

[01:18:05] Speaker 03:
The system was filed in 2019 so it doesn't indicate that the FCC has considered the combined generation two system because it didn't.

[01:18:15] Speaker 03:
And therefore they have not communicated the finding to the FCC as they would have had to.

[01:18:22] Speaker 03:
And so where does that leave us?

[01:18:24] Speaker 03:
And that goes to the heart of rubber stamping.

[01:18:27] Speaker 03:
The FCC cannot do anything, cannot subordinate the FCC.

[01:18:32] Speaker 03:
I'm sorry, the ITU.

[01:18:33] Speaker 03:
Subordination is, of course, a crucial test of what is an improper subdelegation.

[01:18:39] Speaker 03:
This cannot do anything.

[01:18:41] Speaker 03:
We cannot go to the ITU, as Judge Ginsburg was asking, and say, look, your rules are being violated.

[01:18:48] Speaker 03:
You should not ignore that.

[01:18:50] Speaker 03:
We cannot appeal the finding.

[01:18:54] Speaker 03:
And this makes us indistinguishable to the public in the Gutierrez case, the Judge Santel case about the whales, where Judge Santel said, you cannot punt.

[01:19:05] Speaker 03:
The Coast Guard cannot punt to the International Maritime Organization for the vessel routing directions on how to not kill whales.

[01:19:14] Speaker 03:
Why?

[01:19:14] Speaker 03:
Because this would rob the public of its right to challenge those determinations under the Endangered Species Act.

[01:19:23] Speaker 03:
That's what's happening here.

[01:19:25] Speaker 03:
And so if there is improper subdelegation, it's unconstitutional.

[01:19:29] Speaker 03:
And to the extent that the rule

[01:19:33] Speaker 03:
implicates this subdelegation, it's not correct or concordant with the Constitution.

[01:19:39] Speaker 03:
Now, we don't believe that the rule needs to be read that way.

[01:19:42] Speaker 03:
And that goes to the call with that you and I had, Judge Rao.

[01:19:47] Speaker 03:
As to the 18 ways, Judge Gainsborough, you asked a question about whether the ITU might have wanted to see both.

[01:19:55] Speaker 03:
The answer was not quite accurate.

[01:19:58] Speaker 03:
To give SpaceX the benefit of the doubt, this 18-way arose from some difficulty in another band, the KA band, not the 12 gigahertz band.

[01:20:10] Speaker 03:
There was no reason that they would have had to split it for this spectrum.

[01:20:16] Speaker 03:
And then you asked about the- Excuse me, Council.

[01:20:19] Speaker 07:
Didn't we hear that they were requested by staff, ITU staff, to submit that way?

[01:20:25] Speaker 03:
They say that they were requested by ATU staff to submit that wave for the KA band for this different spectrum.

[01:20:32] Speaker 03:
That's where the issue was.

[01:20:34] Speaker 03:
The ATU staff didn't tell them anything about this band.

[01:20:40] Speaker 03:
That's what they chose to do.

[01:20:42] Speaker 03:
And then as far as the disclosure after the fact of the submission is concerned, Mr. Carr said transparency.

[01:20:52] Speaker 03:
The real answer given in the order was

[01:20:55] Speaker 03:
This is an important protection from interference for dish.

[01:21:01] Speaker 03:
But for something to be a protection, you have to be able to do something about it.

[01:21:07] Speaker 03:
It cannot be a protection when you can only hang it on your walls or archive it away, which is what seems to have happened here because our March 6th subsequent showing has fallen on deaf ears and has had no effect whatsoever.

[01:21:29] Speaker 02:
Thank you.