August 29, 2022

BY ELECTRONIC FILING
Marlene H. Dortch
Secretary
Federal Communications Commission
45 L Street, N.E.
Washington, DC 20554

Re: IBFS File Nos. SAT-LOA-20200526-00055 and SAT-AMD-20210818-00105

Dear Ms. Dortch:

Last week, the United States Court of Appeals for the District of Columbia Circuit rejected
challenges raised by DISH Network Corporation (“DISH”) and Viasat, Inc. (“Viasat”) to a
Commission order approving the modification of the license issued to Space Exploration Holdings,
LLC (“SpaceX”) for its first-generation non-geostationary orbit (“NGSO”) satellite system. 1 In
doing so, the court addressed and authoritatively disposed of several arguments that DISH and
Viasat have once again raised against SpaceX’s second generation (“Gen2”) system. As discussed
below, the Commission should follow this latest binding precedent from the D.C. Circuit and reject
those arguments in this proceeding as well.

1. EPFD Compliance and Waiver

Section 25.146 of the Commission’s rules establishes a two-step process for compliance
with the equivalent power flux-density (“EPFD”) limits established by the International
Telecommunication Union (“ITU”) and incorporated into the Commission’s rules: (1) an NGSO
satellite operator certifies it will comply with these limits; and (2) the operator subsequently
confirms its compliance by obtaining a “favorable” or “qualified favorable” finding from the ITU
Radiocommunication Bureau. 2 The Commission adopted these limits to “harmonize [its] rules
with international regulations and provide greater certainty for NGSO FSS operators.” 3 Even
though it is well understood that the EPFD rules are overly protective of GSOs and in fact
unnecessarily harm consumers who depend on NGSOs for their broadband service, 4 SpaceX has
certified that the Gen2 system will comply and has gone beyond by (1) providing the outputs
obtained by a straightforward application of the ITU software to the SpaceX EPFD data files,

1
See Viasat, Inc. v. FCC, Case No. 21-1123 (D.C. Cir. Aug. 26, 2022) (“Affirming Order”),
https://www.cadc.uscourts.gov/internet/opinions.nsf/2A60C2722AD42005852588AA0051E2BE/$file/21-1123-
1960984.pdf.
2
47 C.F.R. § 25.146(a)(2), (c).
3
Update to Parts 2 and 25 Concerning Non-Geostationary, Fixed-Satellite Service Systems and Related Matters,
32 FCC Rcd. 7809, ¶ 35 (2017) (“NGSO Update Order”).
4
See, e.g., Consolidated Opposition to Petitions and Response to Comments of Space Exploration Holdings, LLC,
IBFS File Nos. SAT-LOA-20200526-00055 and SAT-AMD-20210818-00105, Exhibit 2 (Feb. 24, 2022)
(“SpaceX Consolidated Response”) (discussing bias favoring GSO systems in EPFD limits).

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Marlene H. Dortch
August 29, 2022
Page 2 of 5

confirming that the Gen2 system will comply with all applicable limits, 5 and (2) providing to all
requesting parties those data files for their own validation efforts. 6

But DISH and Viasat are not satisfied with this regime, and instead have submitted their
own bespoke analyses that differ from the internationally accepted ITU validation methodology to
manufacture what they claim to be EPFD exceedances. Specifically, DISH’s hired gun first
confirmed that the EPFD data submitted by SpaceX shows that the Gen2 system complies with
the ITU limits, but he then departed from the ITU’s methodology by combining EPFD data files
to reach a contrary result. 7 Similarly, Viasat reached its results by overriding the validation
software’s “worst-case geometry” algorithm and instead substituting its own corner case earth
station locations, and then compounded this departure by combining EPFD data for both the Gen1
and Gen2 systems. 8 SpaceX has previously explained why manipulating the data in these ways
would be contrary to ITU procedure and inappropriate. 9

The Affirming Order rejected exactly these sorts of efforts to rewrite the rules to harm
competition. The court specifically rejected DISH’s attempt to substitute its own bespoke EPFD
analysis in place of the one actually employed by the ITU. The court found that “the governing
rules require interference between GSO and NGSO systems to be assessed through the method
used in the ITU-approved validation software.” 10 Far from faulting the Commission for rejecting
alternative EPFD methodologies, the court confirmed that “an agency ‘abuses its discretion when it
arbitrarily violates its own rules, not when it follows them.’” 11 Accordingly, the Commission must
again reject the attempts by DISH and Viasat to replace the ITU-approved EPFD methodology with
an approach that yields an outcome they prefer. And given how biased EPFD methodology is in favor
of GSOs, if the Commission were ever to open a rulemaking to explore deviating from the ITU
approach, it should act to help those people that depend on NGSOs and are needlessly harmed by the
overly conservative EPFD rules.

DISH also challenged the Commission’s decision to allow SpaceX to deploy at its own risk
prior to receiving an ITU determination on its EPFD submissions, subject to modifying its system
if necessary to come into compliance. The D.C. Circuit rejected this challenge as well. First, it
found that the Commission properly granted a waiver in light of the ITU backlog in processing
EPFD filings and the resulting harm to consumers from delaying high-capacity, low-latency
broadband service to Americans in underserved and unserved areas, noting its prior holding “that

5
See SpaceX Consolidated Response, Exhibit 1.
6
See Letter from David Goldman to Marlene H. Dortch, IBFS File Nos. SAT-LOA-20200526-00055 and SAT-
AMD-20210818-00105 (Feb. 4, 2022) (confirming production of EPFD data files).
7
See Reply Comments of DISH Network Corporation to Opposition and Response to Comments of Space
Exploration Holdings, LLC, IBFS File Nos. SAT-LOA-20200526-00055 and SAT-AMD-20210818-00105, at
14-15 and Exhibit 1 at 1-2 (Mar. 8, 2022).
8
See, e.g., Letter from Jarrett S. Taubman & Christopher D. Bair to Marlene H. Dortch, IBFS File Nos. SAT-LOA-
20200526-00055 and SAT-AMD-20210818-00105, Technical Annex at A1-A2 (Aug. 24, 2022).
9
See Letter from David Goldman to Marlene H. Dortch, IBFS File Nos. SAT-LOA-20200526-00055 and SAT-
AMD-20210818-00105, at 6-9 (Aug. 19, 2022).
10
Affirming Order at 7 (citing 47 C.F.R. § 25.156(a), (c)(2)).
11
Id. (quoting BDPCS, Inc. v. FCC, 351 F.3d 1177, 1184 (D.C. Cir. 2003)).

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Marlene H. Dortch
August 29, 2022
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‘harm resulting from delay’ can be good cause for a waiver.” 12 Second, the court found that the
Commission “reasonably concluded that [SpaceX’s] certification of compliance would provide
some assurance of no harmful interference.” 13 SpaceX has made the same certification (along
with a compliance showing) in this proceeding, and has already waited more than two years for
grant of its Gen2 application and the ability to deploy more and better broadband services
throughout the United States. Accordingly, the same factors justify a similar waiver in this
proceeding as well.

2. NEPA Issues

Viasat has also tried to resuscitate arguments based on the National Environmental Policy
Act (“NEPA”) that the Commission rejected the last time Viasat raised them. 14 As an initial
matter, NEPA has never been found to apply to activities in space. Moreover, even if NEPA did
apply to space activities, SpaceX has demonstrated that Viasat’s arguments should be rejected on
their merits. 15 But the Affirming Order also found that Viasat does not have standing to raise such
issues because its asserted injury is much too speculative and does not affect interests of the sort
protected by NEPA. 16 This provides yet another reason to reject Viasat’s arguments.

Under both the Communications Act of 1934 and the Commission’s rules, a party filing a
petition to deny a satellite application must demonstrate that it is a “party in interest.” 17

To establish party-in-interest standing, a petitioner must allege facts sufficient to

Moreover, “[f]or purposes of standing, an injury must be both ‘concrete and particularized’ and
‘actual or imminent, not conjectural or hypothetical.’” 19 While licensing proceedings before the
Commission are not Article III proceedings, this standard is similar enough that the Commission
has generally reviewed standing issues using the Article III standard that the D.C. Circuit applied.20

12
Id. at 9 (quoting Omnipoint v. FCC, 78 F.3d 620, 631 (D.C. Cir. 1996)).
13
Id.
14
See Space Exploration Holdings, LLC, 36 FCC Rcd. 7995, ¶¶ 80-92 (2021) (“2021 Modification Order”).
15
See, e.g., SpaceX Consolidated Response at 50-58.
16
See Affirming Order at 12-15.
17
See 47 U.S.C. § 309(d); 47 C.F.R. § 25.154(a)(4).
18
Applications of AT&T Mobility Spectrum LLC, New Cingular Wireless PCS, LLC, Comcast Corporation, Horizon
Wi-Com, LLC, NextWave Wireless, Inc., and San Diego Gas & Electric Company, 27 FCC Rcd. 16459, ¶ 16
(2012) (footnote omitted).
19
Choctaw Holdings, LLC, 33 FCC Rcd. 1783, ¶ 15 (WTB 2018) (citation omitted).
20
See Maritime Communications/Land Mobile, LLC, Debtor-in-Possession, 32 FCC Rcd. 3907, ¶ 8 n.33 (WTB
2017).

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Marlene H. Dortch
August 29, 2022
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The Affirming Order found that Viasat did not meet those standing requirements. The court
found, for example, that “Viasat’s theory of space-debris collision does not cross the line from
speculative to certainly impending,” and that many of its other alleged harms are economic “and
thus fall outside the zone of interests protected by NEPA.” 21 The court also rejected Viasat’s
arguments by confirming its prior holding that “suppressing competition . . . is not within the zone
of interests protected by NEPA.” 22 As a result, the court dismissed Viasat’s NEPA claims.

As SpaceX has previously pointed out, the NEPA claims raised in this proceeding are
carbon copies of the ones Viasat raised against SpaceX’s last application 23—the very claims that
the D.C. Circuit dismissed on standing grounds. Accordingly, the Commission should reach the
same conclusion that the court reached and dismiss Viasat’s NEPA arguments for lack of standing.

To be clear, SpaceX believes that Viasat’s NEPA arguments also fail on their merits and
should be rejected just as they were last time Viasat raised them. Indeed, the Commission so
completely rejected those arguments that it did not even reach two threshold bases for dismissal—
i.e., the inapplicability of NEPA to activities undertaken entirely in space and the requirement that
a NEPA petitioner must show “extraordinary circumstances” to overcome the categorical
exclusion that applies to satellite licensing decisions. 24 SpaceX has raised both of those issues
again in this proceeding. 25 Viasat—an operator that chose to license its satellites outside U.S.
jurisdiction—has demonstrated time and again that it will continue to press these meritless claims
and waste countless hours of Commission time until the Commission finally makes clear what is
already apparent—that NEPA does not apply to operations in space. 26

As demonstrated above and in SpaceX’s prior filings, the Commission has several adequate
and independent bases for rejecting Viasat’s NEPA arguments in this proceeding. The lack of
standing identified in the Affirming Order simply adds to the list. Regardless of which basis or
bases it chooses, the Commission should once again reject Viasat’s arguments and hopefully put
an end to its selective invocation of environmental issues as a weapon against competitors.

21
Affirming Order at 13.
22
ANR Pipeline Co. v. FERC, 205 F.3d 403, 408 (D.C. Cir. 2000) (quoted in Affirming Order at 15).
23
See SpaceX Consolidated Response at 43-45, 50-58 (NEPA arguments “merely put a new coat of paint on
arguments Viasat has previously raised against a SpaceX application and the Commission has decisively
rejected”).
24
See 2021 Modification Order ¶ 77 & n.308.
25
See SpaceX Consolidated Response at 45-50.
26
It is worth noting that Viasat has begun to raise NEPA issues in the context of other NGSO applications over the
last several months. See, e.g., Comments of Viasat, Inc., IBFS File Nos. SAT-MPL-20200526-00053 and SAT-
APL-20220616-00059, at 8-9 (Aug. 15, 2022) (Telesat LEO application); Comments of Viasat, Inc., IBFS File
Nos. SAT-MPL-20200526-00062 and SAT-APL-20210112-00007, at 11-12 (April 18, 2022) (OneWeb
application).

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Marlene H. Dortch
August 29, 2022
Page 5 of 5

Sincerely,
/s/ David Goldman
David Goldman
Senior Director, Satellite Policy

SPACE EXPLORATION TECHNOLOGIES CORP.

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