Viasat, Inc. v. FCC ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 3, 2021 Decided August 26, 2022
No. 21-1123
VIASAT, INC.,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
SPACE EXPLORATION HOLDINGS, LLC,
INTERVENOR
Consolidated with 21-1125, 21-1127, 21-1128
On Notices of Appeal and Petition for Review of an
Order of the Federal Communications Commission
William M. Jay argued the cause for appellants Viasat,
Inc. and The Balance Group. With him on the briefs were
Colin J. Ward, David J. Zimmer, Gerard J. Cedrone, Jordan
Bock, Michael F. Smith, and Stephen L. Goodman.
2
Pantelis Michalopoulos argued the cause for appellant
DISH Network Corporation. With him on the briefs were
Mark C. Savignac and William Travis West.
Ivan L. London, Jean-Claude Andre, and Philip E.
Karmel were on the brief for amicus curiae Professor Andy
Lawrence in support of appellants.
James M. Carr and Rachel Proctor May, Counsel,
Federal Communications Commission, argued the causes for
appellee. With them on the brief were Todd Kim, Assistant
Attorney General, U.S. Department of Justice, Robert B.
Nicholson, Robert J. Wiggers, Justin Heminger, and Allen
Brabender, Attorneys, and Jacob M. Lewis, Associate
General Counsel, Federal Communications Commission.
Pratik A. Shah argued the cause for intervenor Space
Exploration Holdings, LLC in support of appellee. With him
on the brief was Z. W. Julius Chen.
Corbin K. Barthold and James E. Dunstan were on the
brief for amicus curiae TechFreedom in support of appellee.
Before: WILKINS, KATSAS, and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: The Federal Communications
Commission approved a request by Space Exploration
Holdings, LLC to fly its satellites at a lower altitude. One
competitor contends that the FCC did not adequately consider
the risk of signal interference, a claim we reject on the merits.
Another competitor, joined by an environmental group, raises
a claim under the National Environmental Policy Act. We
decline to consider it because the environmental group lacks
3
Article III standing, and the competitor’s asserted injury does
not fall within the zone of interests protected by NEPA.
I
A
The Communications Act of 1934 authorizes the FCC to
grant radio station licenses, including for the operation of
communications satellites. 47 U.S.C. § 307(a). The
Commission may modify licenses if it finds that the
modification would serve the public interest, convenience,
and necessity. Id. § 316(a)(1). The Telecommunications Act
of 1996 requires the agency to facilitate the provision of
broadband internet service to unserved areas. Id. § 1302.
To further that goal, the FCC granted Space Exploration
Holdings, LLC (which goes by SpaceX) a license to provide
internet service by satellite. In re Space Exploration
Holdings, LLC, 33 FCC Rcd. 3391 (2018). Once operational,
this service will reach currently unserved areas.
SpaceX uses new technology to expand its coverage area.
Traditional communications satellites move in geostationary
orbit, or GSO. GSO satellites orbit at the same speed as the
Earth’s rotation, so they appear fixed in the sky. A single
GSO satellite has a continuous sight line to users within its
coverage area—and thus can provide continuous service to
them. SpaceX’s satellites, by contrast, move at lower
altitudes in a non-geostationary orbit, or NGSO. The lower
altitude reduces transmission latency, making NGSO satellites
better suited to provide high-speed internet service. But these
satellites do not synchronize with the Earth’s spin, so a single
satellite cannot maintain a sight line with any given user.
SpaceX solved this problem by deploying multiple satellites
that move and communicate as a constellation: When one
4
satellite moves out of view of a user’s ground antenna, it
transfers the signal to the next satellite in line.
B
After receiving authorization for its satellites and
launching about half of them, SpaceX requested permission to
operate the constellation at a lower altitude. Given the
complexity of satellite system design, the FCC seeks where
possible to allow licensees “to modify the technical design of
their satellites as they are being built.” Teledesic LLC, Order
and Authorization, 14 FCC Rcd. 2261, 2264 (Int’l Bureau
1999). But technical changes can interfere with signals from
other satellites, so the Commission must find that “the
proposed modification does not present any significant
interference problems.” Id. Various FCC rules govern this
interference determination.
First, regulations prioritize GSO systems over NGSO
systems. An NGSO system “must not cause unacceptable
interference to” a GSO system. 47 C.F.R. § 25.289. More
specifically, NGSO systems must operate within power limits
set by the International Telecommunications Union (ITU), a
United Nations agency responsible for addressing signal
interference internationally. See id. The licensee must use
ITU-approved software to show compliance with the power
limits. Initially, the licensee enters its satellite data into the
software and certifies the results to the FCC. 47 C.F.R.
§ 25.146(a); see Update to Parts 2 and 25 Concerning Non-
Geostationary, Fixed-Satellite Service Systems and Related
Matters, 32 FCC Rcd. 7809 ¶ 41 (2017) (NGSO Order). The
licensee then submits the data to the ITU, which must make a
“favorable” or “qualified favorable” finding before the
licensee may provide service. 47 C.F.R. § 25.146(c).
5
The rules also address interference among NGSO
systems. Priority is based on the order in which the
competing systems were licensed; systems licensed later must
not unduly interfere with those licensed earlier. NGSO Order,
32 FCC Rcd. 7809 ¶ 61. An NGSO licensee can modify its
license without losing its priority only if the changes will not
cause “significant interference” to existing services.
Teledesic, 14 FCC Rcd. 2261 ¶ 5.
C
In 2019, the FCC’s International Bureau approved
SpaceX’s request to lower roughly half the satellites in its
constellation, after finding that the changes would impose no
undue interference and would serve the public interest. In re
Space Exploration Holdings, LLC, 34 FCC Rcd. 2526 (Int’l
Bureau Apr. 26, 2019) (First Modification Order). Because of
a backlog at the ITU, the Bureau waived the ITU-finding
requirement in part: It allowed the satellites to fly at the
lower altitude after SpaceX certified compliance with ITU
power limits using ITU-approved software. Id. ¶ 28. But the
Bureau still required SpaceX to submit its data to the ITU and
cautioned that SpaceX would have to adjust its operations if
the ITU were to make an unfavorable finding. Id.In the order under review, the full Commission
authorized SpaceX to lower the remainder of its constellation.
In re Space Exploration Holdings, LLC, 36 FCC Rcd. 7995
(2021) (Second Modification Order). Again, the FCC
permitted SpaceX to act upon a successful software
certification. See id. ¶ 41. But it reiterated that SpaceX
would have to bring its system into compliance if the ITU
were to make an adverse finding. Id. ¶ 97(p).
DISH Network Corporation, one of SpaceX’s
competitors, objected to the modification. DISH argued that
6
the proposed changes would interfere with its GSO satellite
television service. Another competitor, Viasat, Inc., jointly
objected with an environmental organization calling itself The
Balance Group. They argued that NEPA required the FCC to
prepare an environmental assessment before granting the
modification. The FCC rejected both contentions. Second
Modification Order, 36 FCC Rcd. 7995 ¶¶ 47, 92.
DISH, Viasat, and The Balance Group appeal the FCC’s
order. SpaceX has intervened to support the Commission.
We have statutory jurisdiction under 47 U.S.C. § 402(b)(6). 1
II
We first consider interference issues. DISH argues that
the FCC’s interference determination violated the
Administrative Procedure Act and the Communications Act.
DISH also challenges the regulatory procedure for showing
compliance with ITU power limits.
A
The APA requires us to set aside agency action that is
arbitrary or capricious. 5 U.S.C. § 706(2)(A). An action is
arbitrary if the agency relied on inappropriate factors, failed to
consider important aspects of the problem, or ignored relevant
evidence. Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). Conversely, agency
action is not arbitrary if it is “reasonable and reasonably
1
Because we have jurisdiction over the appeals under section
402(b), we dismiss Viasat’s petition for review under section
402(a). See Sprint Nextel Corp. v. FCC, 524 F.3d 253, 256 n.4
(D.C. Cir. 2008) (sections 402(a) and 402(b) are “mutually
exclusive”).
7
explained.” FCC v. Prometheus Radio Project, 141 S. Ct.
1150, 1158 (2021). DISH contends that the interference
determination was arbitrary for three reasons.
1
DISH first argues that the FCC unreasonably refused to
consider expert reports claiming that SpaceX’s proposed
changes would interfere with DISH’s GSO satellites. But the
reports use a different method for assessing interference than
what binding regulations require.
The FCC must “adhere to its own rules and regulations.”
AT&T Corp. v. FCC, 448 F.3d 426, 434 (D.C. Cir. 2006).
Here, the governing rules require interference between GSO
and NGSO systems to be assessed through the method used in
the ITU-approved validation software. 47 C.F.R. § 25.146(a),
(c)(2). DISH acknowledges that SpaceX’s desired changes
pass muster under that approach. Nevertheless, DISH argues
that its experts have a better method for calculating
interference. DISH thus faults the FCC for following its own
interference rules. But an agency “abuses its discretion when
it arbitrarily violates its own rules, not when it follows them.”
BDPCS, Inc. v. FCC, 351 F.3d 1177, 1184 (D.C. Cir. 2003).
DISH cites American Radio Relay League v. FCC, 524
F.3d 227 (D.C. Cir. 2008), to support its argument. There, we
faulted the FCC for failing to consider data that undermined a
regulation. Id. at 240–41. But we did so in reviewing the
regulation itself, not its application in a later licensing
proceeding. See id. at 236; see also Env’t Health Trust v.
FCC, 9 F.4th 893, 903 (D.C. Cir. 2021) (same for agency
decision not to initiate a rulemaking). As we have explained,
“an agency need not—indeed should not—entertain a
challenge to a regulation, adopted pursuant to notice and
comment, in an adjudication or licensing proceeding.” Trib.
8
Co. v. FCC, 133 F.3d 61, 68 (D.C. Cir. 1998). The FCC did
not err by following that “hornbook” rule of administrative
law. Id. 2
2
DISH argues that the FCC misapplied Teledesic in
refusing to lower the priority of SpaceX’s NGSO license.
Under Teledesic, the FCC generally permits NGSO licensees
to modify licenses without losing priority if the changes do
not cause “significant interference” to other systems and are
“otherwise consistent with Commission policies.” 14 FCC
Rcd. 2261 ¶ 5. DISH argues that the FCC failed to consider
interference to GSO systems. But the agency expressly found
that lowering SpaceX’s constellation “will not increase
interference to GSO satellite systems.” Second Modification
Order, 36 FCC Rcd. 7995 ¶ 47. And as explained above, it
applied the correct legal standard in making that finding based
on a certified compliance with ITU power limits. Id. ¶ 40; see
47 C.F.R. § 25.289.
3
Finally, DISH argues that the FCC unreasonably waived
the requirement of a favorable ITU finding, thus allowing
SpaceX to proceed based on software validation alone. The
FCC may waive its rules “for good cause shown.” 47 C.F.R.
§ 1.3. Good cause exists “when particular facts would make
strict compliance inconsistent with the public interest.”
AT&T Wireless Servs. v. FCC, 270 F.3d 959, 965 (D.C. Cir.
2001). To satisfy the APA, the FCC must “clearly state in the
2
As explained below, the regulations themselves permit
waivers “for good cause shown.” 47 C.F.R. § 1.3. DISH does not
contend that its expert reports compelled the FCC to formally waive
the validation method required by section 25.146(c)(2).
9
record its reasons for granting the waiver.” Keller Commc’ns
v. FCC, 130 F.3d 1073, 1076 (D.C. Cir. 1997).
The FCC met these requirements. When the International
Bureau first granted the waiver, it determined that an ITU
backlog would significantly delay the start of operations even
though SpaceX had already certified compliance with ITU
power limits using ITU-approved software. First
Modification Order, 34 FCC Rcd. 2526 ¶ 28. We have held
that “harm resulting from delay” can be good cause for a
waiver. Omnipoint v. FCC, 78 F.3d 620, 631 (D.C. Cir.
1996). Here, the Bureau reasonably granted a waiver to avoid
long delays in the provision of internet service to Americans
who remain “totally unserved by other broadband solutions.”
First Modification Order, 34 FCC Rcd. 2526 ¶ 1. And it
reasonably concluded that the certification of compliance
would provide some assurance of no harmful interference.
DISH faults the FCC for not justifying the waiver anew in
the Second Modification Order. But, in that order, the
Commission explained that allowing SpaceX to lower the
remainder of its constellation “will facilitate deployment” of
broadband internet and “improve service to remote and
underserved areas.” 36 FCC Rcd. 7995 ¶ 13. Seeing “no
reason to revoke” the previously granted waiver, id., the
agency extended it to the rest of SpaceX’s constellation. That
decision was reasonable and reasonably explained.
DISH also challenges the waiver as discriminatory and
illogical. It cites WorldVu Satellites Ltd., 32 FCC Rcd. 5366
(2017), to show that the FCC has not waived the ITU-finding
requirement for other licensees. But the licensee there
received a waiver of a different rule. Id. ¶ 19. DISH cannot
show improper discrimination by offering only an “apples-
and-oranges comparison.” Barbour v. Browner, 181 F.3d
101342, 1347 (D.C. Cir. 1999). As for logic, DISH questions
the utility of requiring SpaceX to receive a favorable ITU
finding in the future, despite the possibility of harmful
interference in the present. Although DISH is right that future
ITU review will neither prevent nor undo any current
interference, it still serves a purpose: If the ITU should make
an unfavorable finding, SpaceX will have to eliminate
interference going forward. Second Modification Order, 36
FCC Rcd. 7995 ¶ 97(p). In the meantime, other licensees
may report any present interference through established
regulatory channels. See id. ¶ 97(i).
B
As a fallback to its arguments about arbitrariness, DISH
argues that the FCC’s interference determination violated
sections 303 and 316 of the Communications Act. Section
303 requires the FCC to promulgate regulations “to prevent
interference between stations.” 47 U.S.C. § 303. As detailed
above, the Commission has done so. Section 316 permits
license modifications to promote the “public interest,” which
is undermined by harmful interference. See id. § 316(a)(1).
DISH’s argument rests on the premise that the FCC failed to
adequately address the question of harmful interference, so it
fails for reasons explained above.
C
Finally, DISH raises a structural challenge to 47 C.F.R.
§ 25.146(c), which requires licensees to obtain a favorable
ITU finding. According to DISH, this requirement violates
constitutional and statutory rights to judicial review, because
courts cannot review the ITU finding. Moreover, DISH
continues, the regulation impermissibly delegates FCC
authority to the ITU.
11
We lack jurisdiction to consider these arguments, which
DISH failed to press before the FCC. The Communications
Act bars judicial review of “questions of fact or law upon
which the Commission, or designated authority within the
Commission, has been afforded no opportunity to pass.” 47
U.S.C. § 405(a). Quoting a phrase from one of our cases,
DISH contends that the Act’s exhaustion requirement applies
only to “technical defects” in an FCC decision. See Time
Warner Entm’t v. FCC, 144 F.3d 75, 79–81 (D.C. Cir. 1998).
DISH is mistaken. In Time Warner, we held that section
405(a) applies with special rigor to “technical or procedural”
errors; in that context, a party must “raise the precise claim
before the Commission” so that the agency has an opportunity
to correct any mistake. Id. at 81. But we did not suggest that
section 405(a) applies only to technical or procedural errors.
To the contrary, we explained at length that section 405(a)
requires all claims to be “flagged” or “teed up” before the
Commission, whether by the appellant or by some other party,
before they may be pursued in court. See id. at 79–81; see
also Nat’l Lifeline Ass’n v. FCC, 983 F.3d 498, 509 (D.C. Cir.
2020) (“we will not review arguments that have not first been
presented to the Commission”). Here, no party teed up—with
precision or otherwise—the judicial-review and delegation
claims that DISH now seeks to raise.
III
We now turn to the environmental claim. Viasat and The
Balance Group contend that the FCC violated NEPA by
allowing SpaceX to proceed without first preparing an
environmental assessment.
Before reaching the merits of this claim, we must ask
whether any party has standing to raise it. For constitutional
standing under Article III, a party must show it has suffered
12
an injury that is actual, imminent, or certainly impending.
See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410
(2013). On the other hand, a “speculative” possibility of
future injury does not suffice. See, e.g., id.; Lujan v. Defs. of
Wildlife, 504 U.S. 555, 583–84 (1992); City of Los Angeles v.
Lyons, 461 U.S. 95, 109 (1983). In addition, to pursue NEPA
claims under the APA, the party must show that its injury “is
to interests of the sort protected by NEPA.” Fla. Audubon
Soc’y v. Bentsen, 94 F.3d 658, 665 (D.C. Cir. 1996) (en banc);
see Bennett v. Spear, 520 U.S. 154, 162–63 (1997)
(explaining the “zone of interests” rule for APA review). The
“injury that supplies constitutional standing must be the same
as the injury within the requisite ‘zone of interests.’” Mount.
States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C.
Cir. 1996).
Because neither Viasat nor The Balance Group has met
both requirements, we do not reach the merits of their claim.
A
Viasat competes against SpaceX as a provider of
satellite-communications services. It asserts three distinct
injuries from the approval of SpaceX’s constellation.
1
Viasat worries that SpaceX’s satellites may cause debris
to collide with its own satellites. Viasat operates only a single
satellite that flies close to SpaceX’s constellation, and it does
not seriously contend that the probability of a direct collision
is high enough to support Article III standing. Instead, Viasat
posits that SpaceX’s satellites may collide with other orbiting
bodies, which may cause more space debris, which may in
turn collide with a Viasat satellite.
13
This theory of injury is much too speculative. To ground
standing on the risk of future harm, a party must show both
that the risk is substantial and that the challenged action
substantially increases it. Food & Water Watch, Inc. v.
Vilsack, 808 F.3d 905, 914 (D.C. Cir. 2015). Viasat posits too
many unlikely contingencies to clear those hurdles. First, one
of SpaceX’s satellites would have to suffer a collision. The
FCC estimated this risk to be a chance between 1-in-44 and
1-in-200 over the next century, depending on the number of
satellites launched and the disposal failure rate. Second
Modification Order, 36 FCC Rcd. 7995 ¶ 63. Second, the
collision would have to generate a debris field of its own, with
particles large enough to damage another satellite. According
to Viasat, only 0.5 percent of debris particles currently in orbit
are large enough to cause such damage. Finally, a debris
particle large enough and traceable to an impact with a
SpaceX satellite would have to happen upon a collision
course with Viasat’s satellite, remain undetected, and thwart
satellite protocols to avoid collisions. Viasat’s standing
affidavit is long on the general problem of space debris, but
short on the probability that any SpaceX impact might
imminently harm a Viasat satellite. Viasat’s theory of space-
debris collision does not cross the line from speculative to
certainly impending.
2
Alternatively, Viasat asserts that SpaceX’s constellation
increases its own operating costs—for example, by making it
more technically complex and more expensive for Viasat to
launch its own satellites. Those harms are economic—and
thus fall outside the zone of interests protected by NEPA.
See, e.g., Gunpowder Riverkeeper v. FERC, 807 F.3d 267,
274 (D.C. Cir. 2015) (“The zone of interests protected by the
NEPA is, as its name implies, environmental; economic
14
interests simply do not fall within that zone.”); Mount. States,
92 F.3d at 1235–36 (“NEPA’s rather sweeping list of interests
… do not include purely monetary interests, such as the
competitive effect that a construction project may have on
plaintiff’s commercial enterprise.”).
Viasat responds that predominating economic injuries,
although themselves unprotected by NEPA, do not disqualify
a party from asserting other, “environmental” injuries, Nat’l
Ass’n of Home Builders v. Army Corps of Eng’rs, 417 F.3d
1272, 1287 (D.C. Cir. 2005), or injuries with “an
environmental as well as an economic component,” Monsanto
v. Geertson Seed Farms, 561 U.S. 139, 155 (2010). Viasat
reasons that its economic injury flows from “orbital
crowding”—in other words, congestion in outer space—
which Viasat says is a “classic environmental concern.”
Viasat Reply Br. at 22–23.
We reject this argument. To be sure, we have suggested
that congestion such as “vehicular and pedestrian traffic” is an
environmental harm against which NEPA is directed. Realty
Income Trust v. Eckerd, 564 F.2d 447, 452 n.10 (D.C. Cir.
1977) (quoting Hanly v. Mitchell, 460 F.2d 640, 647 (2d Cir.
1972)). Individuals subjected to these nuisances may
therefore sue to prevent NEPA violations. An apartment
owner “in Manhattan” may object to the building of a jail
“across the street.” Hanly, 460 F.2d at 642. And the owner
of buildings “in downtown Jackson, Mississippi” may object
to “the construction of a new federal office building in
downtown Jackson.” Realty Income Trust, 564 F.2d at 452.
But Article III standing is not geographically unbounded.
Individuals wishing to look at elephants in the Bronx Zoo
cannot complain about the treatment of elephants in Sri
Lanka. See Defs. of Wildlife, 504 U.S. at 566. Likewise,
commuters in New York City cannot complain about actions
15
that worsen traffic in Washington, D.C. To press a NEPA
claim, an individual must be close to the wildlife that he
wants to experience or the congestion that he wants to avoid.
This follows from the bedrock standing principle that “the
‘injury in fact’ test requires more than an injury to a
cognizable interest. It requires the party seeking review to be
himself among the injured.” Sierra Club v. Morton, 405 U.S.
727, 734 (1972); see also Match-E. Band of Pottawatomi
Indians v. Patchak, 567 U.S. 209, 227 (2012) (a “neighboring
landowner” may challenge federal land acquisition over
aesthetic and environmental concerns). We do not question
that space congestion attributable to SpaceX may impose
economic costs on Viasat itself. But we do not think that
Viasat (or its shareholders, officers, employees, customers,
suppliers, or other stakeholders) can fairly be described as
having personally suffered a nuisance, aesthetic, or other
environmental injury from congestion in outer space.
3
Finally, Viasat claims injury because the FCC licensed
one of its competitors. That is a pure economic harm well
beyond the purview of NEPA. ANR Pipeline Co. v. FERC,
205 F.3d 405, 408 (D.C. Cir. 2000) (“suppressing competition
… is not within the zone of interests protected by NEPA”).
B
The second party seeking to raise a NEPA claim is The
Balance Group. According to its “operating officer” Joseph
Sandri, the Group “exists to provide a balanced approach to
solving large, systemic issues” about technology’s “impact on
the human condition and the environment at large.” Sandri
Decl. ¶ 3. The Group asserts standing as an organization and
as an association acting on behalf of its members.
16
1
To determine organizational standing, we “conduct the
same inquiry as in the case of an individual.” Havens Realty
Corp. v. Coleman, 455 U.S. 363, 378 (1982). Thus, the
Group must show that it has suffered a concrete, imminent
injury from the FCC’s licensing decision. See Defs. of
Wildlife, 504 U.S. at 560. A mere “setback to the
organization’s abstract social interests” is not enough.
Havens Realty, 455 U.S. at 378. The Group must prove that
its “discrete programmatic concerns are being directly and
adversely affected.” PETA v. USDA, 797 F.3d 1087, 1093
(D.C. Cir. 2015) (quoting Am. Legal Found. v. FCC, 808 F.2d
84, 92 (D.C. Cir. 1987)).
A party seeking to challenge agency action in court bears
the same burden to prove standing “as that of a plaintiff
moving for summary judgment.” Ams. for Safe Access v.
DEA, 706 F.3d 438, 443 (D.C. Cir. 2013). Thus, unless
standing is clear from the administrative record, the party
must submit evidence to prove it. See D.C. Cir. R. 28(a)(7);
Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002). In
this context as elsewhere, “barebones” statements do not
suffice. Twin Rivers Paper Co. v. SEC, 934 F.3d 607, 613–14
(D.C. Cir. 2019).
The Group’s affidavit is too conclusory to establish
organizational standing. The Group says that the FCC’s
licensing decision has forced it to “redeploy personnel and
divert other resources” from research projects about terrestrial
networks. Sandri Decl. ¶¶ 5–6. But which personnel and
resources, and to where were they redeployed? Sandri does
not say, beyond a threadbare claim that “equipment and
personnel” were needed to “measure the impacts of the
SpaceX system.” Id. ¶ 5. Sandri estimates that the Group
17
spent “at least $10,000” on “activities related to” SpaceX’s
constellation, but he gives no concrete sense of what the funds
were spent on. Id. ¶ 7. These unadorned assertions do not
enable us to fairly assess whether the Group has satisfied the
requirements for organizational standing under Havens Realty
and PETA. See Conservation Force v. Jewell, 733 F.3d 1200,
1207 (D.C. Cir. 2013) (“We do not insist on record evidence
and affidavits to establish standing because we are misguided
nitpickers, but rather because we must respect the limits of
our jurisdiction.”).
2
Associations sometimes may assert standing on behalf of
their individual members, Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977), but the Group has not
shown that it qualifies as a membership association.
To assert associational standing, an organization must
have the “indicia of a traditional membership association.”
Sorenson Commc’ns v. FCC, 897 F.3d 214, 225 (D.C. Cir.
2018) (quoting Am. Legal Found., 808 F.2d at 90). This turns
on considerations such as whether members finance the
organization, guide its activities, or select its leadership. See
id.; Gettman v. DEA, 290 F.3d 430, 435 (D.C. Cir. 2002). On
the other hand, it is not enough for putative members simply
to read a group’s publications, subscribe to its e-mail list, or
follow its Facebook page. See Sorenson Commc’ns, 897 F.3d
at 225; Gettman, 290 F.3d at 435. In Gettman and American
Legal Foundation, we applied these criteria to deny
associational standing to groups that fell on the wrong side of
this line. See 290 F.3d at 435; 808 F.2d at 89–90. And in
Sorenson Communications, we denied standing to a group
whose affidavit left it “unclear” whether the group satisfied
these criteria. 897 F.3d at 225.
18
Here, the Group has given us no insight into how it
relates with its members. Two purported members submitted
affidavits, but neither describes involvement in the Group
beyond a bare assertion of membership. See Baddiley Decl.
¶ 2; Malina Decl. ¶ 2. And the Group’s own affidavit,
submitted by its operating officer, makes no reference to
membership. Again, we are left with no basis to determine
whether the requisite elements of standing have been met—an
issue on which the Group bore the burden of proof.
IV
The FCC adequately explained its conclusion that the
modification of SpaceX’s license would not interfere with
DISH’s satellites, and there is no proper party to pursue the
NEPA claim.
Affirmed in part and dismissed in part.