Spectrum Five LLC v. Federal Communications Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 11, 2014 Decided July 11, 2014
No. 13-1231
SPECTRUM FIVE LLC,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION,
RESPONDENT
ECHOSTAR SATELLITE OPERATING CORPORATION,
INTERVENOR
Consolidated with 13-1232
On Appeal From and Petition For Review of an
Order of the Federal Communications Commission
Scott H. Angstreich argued the cause for appellant. With
him on briefs were John Thorne and Aaron M. Panner.
Matthew J. Dunne, Counsel, Federal Communications
Commission, argued the cause for appellee. With him on the
brief were William J. Baer, Assistant Attorney General, U.S.
Department of Justice, Robert B. Nicholson and Robert J.
Wiggers, Attorneys, Jonathan B. Sallet, Acting General
Counsel, Federal Communications Commission, and Jacob
2
M. Lewis, Associate General Counsel. Richard K. Welch,
Deputy Associate General Counsel, Federal Communications
Commission, and James M. Carr, Counsel, entered
appearances.
David H. Solomon, Bryan N. Tramont, Craig E. Gilmore,
and Phuong N. Pham were on the brief for intervenor
EchoStar Satellite Operating Corporation in support of
appellee.
Christopher J. Wright was on the brief for amicus curiae
DIRECTV, LLC in support of appellee.
Before: TATEL, SRINIVASAN and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Wilkins.
WILKINS, Circuit Judge: Cable television has for many
years been the primary way consumers receive video
programming. A growing competitor of cable television is
satellite service. See Comcast Corp. v. FCC, 579 F.3d 1, 3, 8
(D.C. Cir. 2009). The demand for orbital space and radio
spectrum is great in the increasingly competitive satellite
service industry. Securing rights to operate a satellite at an
orbital location is, therefore, extremely valuable. And even
more valuable is the right to operate a satellite while requiring
that other satellite operators at nearby orbital locations not
interfere with your operations. The coordination of these
rights and the allocation of radio spectrum amongst many
nations are handled primarily by the International
Telecommunication Union (“ITU”).
This petition involves Bermuda’s efforts to secure rights
from the ITU to operate a satellite at the 96.2° W.L. orbital
3
location.1 As required by the ITU’s regulations, to obtain
such rights Bermuda needed to deploy and maintain a satellite
at this orbital location. Bermuda did so by partnering with
Intervenor EchoStar Satellite Operating Corporation
(“EchoStar”), and EchoStar then requested special temporary
authority from the Federal Communications Commission
(FCC or Commission) to move a satellite from its then-
current location at 76.8° W.L. to the desired 96.2° W.L.
orbital location.
The Netherlands, meanwhile, also sought rights from the
ITU to operate a satellite at the nearby 95.15° W.L. orbital
location. But if Bermuda secured its rights before the
Netherlands, then Bermuda—through the ITU—could require
that the Netherlands (and any other country with subordinate
rights) not interfere with any of its satellite operations. Thus,
petitioner Spectrum Five LLC (“Spectrum Five”)—a
developer and operator of satellites working in partnership
with the Netherlands—filed an objection with the FCC to
1
“[S]atellites of the sort at issue in this case are geostationary—
meaning that they are effectively located at a fixed point in space,
directly above the equator at a particular longitudinal ‘orbital
location’ denoted in degrees of longitude.” DIRECTV Amicus
Curiae Br. at 2. However, “[a] satellite in the geostationary orbit
cannot be thought of as ‘fixed in space.’ On the contrary, it is in
permanent motion caused by both natural forces and occasional
corrective impulses exerted by the satellites [sic] propulsion
system. The satellite moves like a ball maintained in the air by
skillful kicks of a football player’s foot . . . .” United Nations
Committee on the Peaceful Uses of Outer Space, Physical Nature
and Technical Attributes of the Geostationary Orbit: Study
Prepared by the Secretariat, ¶ 18, U.N. Doc. A/AC.105/404
(January 13, 1988) (cited in Resp. Addendum at p.7). In our case,
the satellite’s propulsion system was used to reposition it from one
orbital location to another.
4
EchoStar’s request to move its satellite from 76.8° W.L. to
96.2° W.L. However, the Commission granted EchoStar’s
request, and thereafter the ITU determined that Bermuda
secured rights to the 96.2° W.L. orbital location.
Spectrum Five petitions for review of the Commission’s
order, arguing principally that the Commission acted
arbitrarily and capriciously because it incorrectly concluded,
in Spectrum Five’s view, that there were extraordinary
circumstances justifying the Commission’s decision to grant
EchoStar’s request. Because Spectrum Five has failed to
demonstrate a significant likelihood that a decision of this
Court would redress its alleged injury, we dismiss its petition
for lack of Article III standing.
I.
A.
To provide context for Spectrum Five’s petition, we
begin with an overview of broadcast satellites, which are
regulated both domestically and internationally. The FCC
regulates satellite service for signals transmitted or received
within the United States. One of these services is direct
broadcast satellite (“DBS”). Although DBS is a term used
informally to refer to satellite television broadcasts intended
for home reception,2 under FCC regulations DBS specifically
refers to a “radiocommunication service in which signals
transmitted or retransmitted by . . . space stations in the 12.2–
12.7 GHz frequency band are intended for direct reception by
subscribers or the general public.” See 47 C.F.R. §§ 2.1,
2
See Cablevision Sys. Corp. v. FCC, 649 F.3d 695, 700 (D.C. Cir.
2011) (“[D]irect broadcast satellite (DBS) companies . . . transmit
programming via direct-to-home satellites.”).
5
25.201. DBS providers include companies such as Dish
Network and DIRECTV, LLC (“DIRECTV”). New entry of
additional DBS providers is precluded by a freeze on DBS
applications that the FCC instituted in 2005, following our
prior invalidation of the FCC’s DBS license auction
procedures. See Northpoint Technology, Ltd. v. FCC, 412
F.3d 145 (D.C. Cir. 2005).
In addition to domestic regulation by the FCC, the use of
DBS satellites is subject to an international, treaty-based
regulatory framework administrated by the ITU, a specialized
agency of the United Nations. This treaty sets forth regional
plans that apportion the United States and other ITU member
nations (referred to as “administrations”) spectrum and orbital
locations for DBS service.3 The United States falls within the
ITU’s Region 2 “Broadcasting-satellite service (BSS)”4 Plan
(or “the Plan”), Northpoint, 412 F.3d at 148, and has been
assigned DBS frequencies at eight orbital locations,5 see
DIRECTV, Inc. v. FCC, 110 F.3d 816, 821 (D.C. Cir. 1997).
Assignments under the Plan are not set in stone, however;
administrations may modify the Plan by filing a request with
the ITU. ITU Radio Regs. App. 30, Art. 4.2 (2012). An
administration must satisfy two conditions to modify the Plan.
First, the filing administration has eight years to “br[ing] into
use” the requested assignment. Id. App. 30, Art. 4.2.6. This
requires, among other things, deploying and maintaining at
3
See Amendment of the Commission’s Policies and Rules for
Processing Applications in the Direct Broadcast Satellite Service,
21 FCC Rcd 9443 ¶ 3 (2006) (“DBS Applications NPRM”).
4
Direct broadcast satellite service (DBS) is referred to
internationally as broadcasting satellite service (BSS).
5
The orbital locations are: 61.5° W.L., 101° W.L., 110° W.L., and
119° W.L., 148° W.L., 157° W.L., 166° W.L., and 175° W.L.
6
the requested orbital location a satellite capable of providing
service in the relevant frequencies for at least ninety
consecutive days. Id., Art. 11.44B. Second, the filing
administration must also reach agreement with “affected
administrations.” Id. App. 30, Art. 4.2.3. Affected
administrations are nations that have already received
assignments from the ITU to operate in the same
radiofrequency bands at nearby orbital locations, or that have
pending modification requests to operate in the same
radiofrequency bands at nearby locations.
If the filing administration satisfies both conditions—and
thus perfects its filing—then the ITU will enter the orbital slot
assignment in the ITU Master International Frequency
Register. Id. App. 30, Art. 4.2.19. Perfecting a filing is
significant because satellites operating pursuant to that filing
have priority over subsequent filings, thus entitling the
satellite operation to “interference protection” from satellites
operating pursuant to subordinate filings. If the filing is not
brought into use in eight years, however, then it lapses,
meaning the ITU will suppress the filing and remove the
frequency assignments from its databases. Id. App. 30, Art.
4.1.3.
This dual regulatory scheme often requires parties to
comply both with ITU regulations and the relevant domestic
laws. For example, say a party sought to deploy a satellite to
the 101° W.L. orbital location. Pursuant to ITU regulations,
that party must, among other requirements, obtain
authorization from the administration with rights to the 101°
W.L. orbital location, see id., Art. 18.1, which is the United
States. In addition, if the party wanted to provide DBS
service to the United States, it must obtain a license from the
FCC. See 47 C.F.R. § 25.102(a).
7
B.
Under the Plan, Bermuda has been assigned provisional
rights to operate 16 of the 32 BSS channels at the 96.2 W.L.°
orbital location. ITU Radio Regs., App. 30, Art. 10; Joint
Appendix (J.A.) 10. Through a filing with the ITU known as
BERMUDASAT-1, the United Kingdom (U.K.) on behalf of
Bermuda sought to modify the Plan to secure rights to operate
all 32 BSS channels at this orbital location. Id. Because the
U.K. made the filing on April 15, 2005, it had until April 14,
2013 to bring its requested assignment into use before it
lapsed. See EchoStar Satellite Operating Company
Application for Special Temporary Authority Related to
Moving the EchoStar 6 Satellite from the 77° W.L. Orbital
Location to the 96.2° W.L. Orbital Location, and to Operate
at the 96.2° W.L. Orbital Location, 28 FCC Rcd 4229, 4231
¶ 8 (Int’l Bur. 2013) (Bureau Order). To deploy a satellite at
96.2° W.L., Bermuda entered into an agreement with SES, a
global satellite services provider. SES Satellite Leasing
Limited (an SES affiliate company)6 and its development
partner, EchoStar, decided to use a satellite known as
EchoStar 6 to bring into use the BERMUDASAT-1 filing. Id.
at 4229 ¶ 2. EchoStar 6, which was launched in July 2000
pursuant to an FCC license, had been located at 76.8° W.L.
Id. at 4229–30 ¶ 3. Therefore, EchoStar needed the FCC’s
permission to move the satellite to 96.2° W.L. Under FCC
regulations, applications to modify a satellite license are
subject to a 30-day public notice and comment. See 47
U.S.C. § 309(b); 47 C.F.R. §§ 25.117; 25.151(d). As of early
February 2013, however, EchoStar had not initiated the notice
and comment process. Given the ITU’s April 14, 2013
6
We will use SES to refer to SES and all of its affiliate and
subsidiary companies.
8
deadline for bringing into use the BERMUDASAT-1 filing,
modifying EchoStar’s FCC license to allow EchoStar 6 to
move to 96.2° W.L. was not a viable option. Bureau Order,
28 FCC Rcd at 4231 ¶ 8 n.17.
Instead, scrambling to meet this deadline, on February
20, 2013, EchoStar filed an application with the FCC’s
International Bureau (“Bureau”) for special temporary
authority (“STA”) to move EchoStar 6. J.A. 10. Under FCC
regulations, the Commission may grant a request for STA
“only upon a finding that there are extraordinary
circumstances requiring temporary operations in the public
interest and that delay in the institution of these temporary
operations would seriously prejudice the public interest.” 47
C.F.R. § 25.120(b)(1). In its request for STA, EchoStar stated
that it was “making this request to accommodate the needs of
its customer and development partner, SES Satellites
(Bermuda) Ltd. . . . which has been authorized to operate a
BSS satellite at 96.2° W.L. pursuant to the BERMUDASAT-1
filing.” J.A. 11. EchoStar also stated that “SES intends to use
EchoStar 6 at 96.2° W.L. to evaluate and develop commercial
service opportunities in the Caribbean, Latin American, and
North Atlantic markets outside of the United States.” Id.
EchoStar asked the Commission to act on its request “by
March 12, 2013 so that commercial development may begin
at the earliest possible date.” Id.
Both Spectrum Five and DIRECTV filed objections with
the FCC to EchoStar’s STA application. Spectrum Five
objected because it, too (in partnership with Netherlands),
sought to secure international rights for what was essentially
the same orbital location. Pet’r’s Br. at 11. Specifically, in
2011 the Netherlands made on behalf of Spectrum Five a
filing with the ITU known as BSSNET3-95W, to operate a
satellite at the 95.15° W.L. orbital location. Id. at 11, 29.
9
However, because the U.K. made its filing first, if the U.K.
brought into use its filing, its satellite operations would be
entitled to interference protection from the Netherlands’
satellite operations. Given the close proximity between the
requested assignments in the BERMUDASAT-1 and
BSSNET3-95W filings, Spectrum Five asserted to the
Commission that the satellites could not “operate concurrently
because of interference considerations.” Id. at 11 n.9.
As for DIRECTV, prior to the BERMUDASAT-1 filing
it had sought a modification of the Plan to operate multiple
DBS satellites—DIRECTV 4S, DIRECTV 8, and DIRECTV
9S—at the nearby 101° W.L. orbital location. DIRECTV
Amicus Curiae Br. at 8–9. The modification process for
DIRECTV 4S and 8 had begun (and was perfected under ITU
regulations) prior to the U.K.’s BERMUDASAT-1 filing, and
thus these satellite operations were entitled to interference
protection from satellites operating pursuant to the U.K.
filing. Id. at 8–9. The modification for DIRECTV 9S,
however, was filed on May 9, 2005, several weeks after the
BERMUDASAT-1 filing. Id. The later-filed U.S.
modification for DIRECTV 9S would therefore “affect”
Bermuda’s operations, thus entitling Bermuda’s operations to
interference protection from DIRECTV 9S—and all future
(subordinate) modifications at the 101° W.L. orbital location.
DIRECTV subsequently withdrew its objection to
EchoStar’s STA request, however, after it entered into a
“coordination agreement” with SES. Bureau Order, 28 FCC
Rcd at 4230 ¶ 5. In a March 2013 letter, SES explained to the
FCC that “it had concluded an operator-to-operator
coordination arrangement with the U.S. DBS operator at 101°
W.L. that fully resolves any concern about the impact of
Bermuda DBS operations at 96.2° W.L. on existing and future
U.S. DBS services at the nominal 101° W.L. orbital location.”
10
J.A. 109. “As a result,” SES commented, it “looked forward
to a prompt grant of EchoStar’s request for [STA] to move the
EchoStar 6 satellite to 96.2° W.L.” Id. Because the U.S. was
the “responsible administration” for EchoStar 6 under ITU
regulations, as part of the coordination agreement the FCC
agreed not to raise any objections with the ITU to the U.K.
bringing into use the BERMUDASAT-1 filing. Bureau
Order, 28 FCC Rcd at 4234 ¶ 15.
The Bureau subsequently granted EchoStar’s STA
request. Bureau Order, 28 FCC Rcd at 4229 ¶ 1. It found
that there were “extraordinary circumstances,” primarily due
to the benefits derived from the coordination agreement
between EchoStar and DIRECTV. Id. at 4232 ¶¶ 9–10. The
Bureau found that “the proposed EchoStar 6 operations will
have no foreseeable adverse impact on U.S.-licensed
operations or related U.S. ITU filings,” and further found that
“no operating satellite will experience harmful interference
from EchoStar 6’s proposed operations as a result of this STA
grant.” Id. at 4232 ¶ 10. Notably, in response to Spectrum
Five’s and the Netherlands’ argument “that there are
‘material’ differences in technical parameters between the
operations proposed in the EchoStar STA and the
BERMUDASAT-1 filings,” the Bureau stated their “concerns
. . . are ones that, in our view, can only be resolved by the
U.K. and Netherlands Administrations, with the assistance of
the ITU if necessary[.]” Id. at 4232 ¶ 15. Continuing its
discussion of the FCC’s limited role, the Bureau stated:
We therefore express no view and will take no
position regarding the validity or priority of the ITU
filings of either Administration, or the conformity with
the ITU Radio Regulations and associated rules of
procedure of any notification by the U.K.
Administration to the ITU concerning such filings,
11
except to the extent of assuming the validity of those
filings in connection with the operator-to-operator
arrangement reached by DIRECTV and SES
Bermuda.
Id.
Spectrum Five sought review by the Commission, which
upheld the Bureau’s decision. EchoStar Satellite Operating
Company Application for Special Temporary Authority
Related to Moving the EchoStar 6 Satellite from the 77° W.L.
Orbital Location to the 96.2° W.L. Orbital Location, and to
Operate at the 96.2° W.L. Orbital Location, 28 FCC Rcd
10412, 10412 ¶ 1 (2013) (STA Order). In its order, the
Commission also stated that the Bureau properly declined to
take any position regarding the implications of granting
EchoStar’s STA request on the BERMUDASAT-1 filing with
the ITU, explaining that “such [a] determination[] [is] for the
ITU.” STA Order, 28 FCC Rcd at 10417 ¶ 12. On September
3, 2013, a few months after the Commission issued its STA
Order, the ITU recorded the BERMUDASAT-1 filing in the
ITU Master International Frequency Register. Pet’r’s
Addendum at 38–42.
Spectrum Five petitioned this Court for review of the
Commission’s order, asserting that we have jurisdiction
pursuant to 47 U.S.C. § 402(a).7
7
Spectrum Five filed both a petition for review under § 402(a) and
a notice of appeal under section § 402(b)(6) of the Communications
Act. Recognizing that these provisions are “mutually exclusive,”
NextWave Personal Commc’ns, Inc. v. FCC, 254 F.3d 130, 140
(D.C. Cir. 2001), Spectrum Five asks us to dismiss the filing that
relies on the incorrect jurisdictional provision. Pet’r’s Br. 1 & n.1.
Because EchoStar did not seek to “modify” its license, 47 C.F.R. §
25.117, but instead sought and was granted “special temporary
12
II.
Spectrum Five contends that the Commission’s granting
of EchoStar’s STA request was arbitrary and capricious, and
requests that we vacate the Commission’s order. Pet’r’s Br. at
13–17. According to Spectrum Five, if we vacate the STA
Order, EchoStar 6 would never have had lawful authority to
operate at 96.2° W.L, and, consequently, the U.K. did not
successfully bring into use the BERMUDASAT-1 filing. Id.
at 24. In addition to vacatur, Spectrum Five asks us to order
the FCC to take four additional steps:
(1) notify[] the ITU that EchoStar 6 did not have
lawful authority to operate at 96.2° W.L., (2) notify[]
the ITU that, as a result, the United States does not
consent to the U.K.’s use of EchoStar 6 to bring the
BERMUDASAT-1 filing into use, (3) revok[e] its
ratification of the coordination agreement privately
negotiated among EchoStar, DIRECTV, and SES
Bermuda, which was a prerequisite for the U.K.’s
claim to have brought into use the BERMUDASAT-1
filing, and (4) inform[] the ITU that the
BERMUDASAT-1 filing expired because EchoStar 6
was not successfully maintained at 96.2° W.L. by the
April 14 deadline.
Id. at 35–36.
authority,” 47 C.F.R. § 25.120, Spectrum Five has not “appealed” a
Commission order granting, renewing, or modifying a license. See
47 U.S.C. § 402(b)(6); Freeman Eng’g Assocs., Inc. v. F.C.C., 103
F.3d 169, 177 (D.C. Cir. 1997). Jurisdiction therefore lies, if at all,
under § 402(a), because Spectrum Five asks this Court to vacate the
STA Order. We therefore dismiss Spectrum Five’s appeal under
§ 402(b)(6).
13
We need not reach the merits of Spectrum Five’s petition,
however, because we conclude that it has failed to satisfy the
redressability requirement of Article III standing.8
Specifically, Spectrum Five has not satisfied its burden of
showing that, if this Court were to vacate the STA Order,
there is a significant increase in the likelihood that the ITU—a
third party not before this court and not subject to our
authority—would reverse course and conclude that the U.K.
did not bring into use the BERMUDASAT-1 filing. Also,
without deciding whether we have authority to take all of the
additional steps requested by Spectrum Five, we conclude
that, in any event, Spectrum Five still falls short of satisfying
its burden even if we take the additional steps it requests.
A.
“To establish the ‘irreducible constitutional minimum’
for Article III standing, a party must show that it has suffered
an injury in fact, that there exists a causal link between that
injury and the conduct complained of, and that a favorable
decision on the merits will likely redress the injury.” US
Ecology, 231 F.3d at 24 (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992)). To satisfy the
redressability requirement, the petitioner must demonstrate
“that it is likely as opposed to merely speculative that the
injury will be redressed by a favorable decision of the court.”
Klamath Water Users Ass’n v. FERC, 534 F.3d 735, 738
(D.C. Cir. 2008).
8
This conclusion makes it unnecessary to determine whether
Spectrum Five has satisfied the other requirements of Article III
standing. See US Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d
20, 24 (D.C. Cir. 2000).
14
Further, “[w]hen redress depends on the cooperation of a
third party, ‘it becomes the burden of the [party asserting
standing] to adduce facts showing that those choices have
been or will be made in such manner as to produce causation
and permit redressability of injury.’ ” US Ecology, 231 F.3d
at 24-25 (quoting Lujan, 504 U.S. at 562); see also Klamath
Water, 534 F.3d at 739 (“In a case like this, in which relief for
the petitioner depends on actions by a third party not before
the court, the petitioner must demonstrate that a favorable
decision would create ‘a significant increase in the likelihood
that the plaintiff would obtain relief that directly redresses the
injury suffered.’ ” (quoting Utah v. Evans, 536 U.S. 452, 464
(2002))). It is “ ‘substantially more difficult’ ” for a petitioner
to establish redressability where the alleged injury arises from
the government’s regulation of a third party not before the
court. Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366
F.3d 930, 933 (D.C. Cir. 2004) (quoting Lujan, 504 U.S. at
562); Renal Physicians Ass’n v. U.S. Dep’t of Health &
Human Servs., 489 F.3d 1267, 1273 (D.C. Cir. 2007) (same).
Here, the asserted injury is even one step further removed
from the typical case in which redress depends on the
independent action of a third party not before the court,
because the ITU is an international organization that is not
regulated by our government and therefore not bound by this
Court or the FCC.
Spectrum Five contends that “vacatur would remove
both the United States’ consent to the U.K.’s use of
EchoStar 6 to bring into use the BERMUDASAT-1 filing
and the domestic authority for EchoStar 6 to operate at
96.2° W.L.” Pet’r’s Br. at 34. Spectrum Five asserts that
this “will significantly increase the likelihood that the ITU
denies the U.K.’s claim that it bought into use the
BERMUDASAT-1 filing.” Id. We disagree.
 15
In support of its contention, Spectrum Five relies on
Article 11.44B of the ITU Radio Regulations. This article
states in relevant part:
A frequency assignment to a space station in the
geostationary-satellite orbit shall be considered as
having been brought into use when a space station in
the geostationary satellite orbit with the capability of
transmitting or receiving that frequency assignment
has been deployed and maintained at the notified
orbital position for a continuous period of ninety days.
ITU Radio Regs., Art. 11.44B. Advancing a novel
interpretation of the word “capability,” Spectrum Five
contends that to bring into use the BERMUDASAT-1 filing,
“the U.K. needed to place a satellite at 96.2° W.L. that was
‘capab[le] of transmitting or receiving that frequency
assignment,’ . . . meaning, among other things, that the
satellite had lawful domestic authority to operate.” Pet’r’s Br.
33–34. Spectrum Five’s interpretation of “capability” to
include “lawful domestic authority” is contrary to its ordinary
meaning. FTC v. Tarriff, 584 F.3d 1088, 1090 (D.C. Cir.
2009) (“It is fixed law that words of statutes or regulations
must be given their ordinary, contemporary, common
meaning.”) (quotation marks omitted). Capability means
“power or ability,” not legal authority. See, e.g., NEW
OXFORD AM. DICTIONARY 252 (2d ed. 2005) (defining
“capable” as one’s “power or ability,” and “capabilities” as
“the extent of someone’s or something’s ability”).
And even more importantly, Spectrum Five’s
interpretation makes little sense when interpreting capability
in the context of Article 11.44B. See, e.g., Gonzales v.
Carhart, 550 U.S. 124, 152 (2007) (“In interpreting statutory
texts courts use the ordinary meaning of terms unless context
16
requires a different result.”); Blackmon-Malloy v. U.S. Capitol
Police Bd., 575 F.3d 699, 708 (D.C. Cir. 2009) (“[C]ourts
should construe statutory language in accord with its ordinary
or natural meaning, in the context of the statutory scheme,
since statutory language, plain or not, depends on context.”)
(citations and quotation marks omitted). By using the
preposition “of,” Article 11.44B prescribes a specific,
technical capability that is required of space stations: a space
station must be capable “of transmitting or receiving that
frequency assignment.” ITU Radio Regs., Art. 11.44B.
In further support of its position, Spectrum Five cites a
January 2013 ITU letter to “administrations of Member States
of ITU,” which elaborates upon the requirements of Article
11.44B. Pet’r’s Addendum at 9. Spectrum Five points to the
fact that the ITU may request “the satellite network operators’
license application to the administration.” Id. Even though
the ITU mentions the license application and not the actual
license, in Spectrum Five’s view this indicates that the ITU
wants to know whether the satellite operator had lawful
domestic authority. Spectrum Five’s reliance on this letter is
misplaced because it has, again, ignored the context of the
letter. The relevant paragraph of the letter states:
In order to avoid possible misinterpretation of the
meaning of “with the capability of transmitting or
receiving that frequency assignment” and to elaborate
on the manner in which the [ITU
Radiocommunication] Bureau would apply this
provision, the [ITU Radiocommunication] Bureau has
developed a non-exhaustive list of possible types of
information that might be requested to verify the
transmitting and receiving capability of a satellite,
once the notified [date of bringing into use] has been
received[.]
17
Id. at 9 (emphasis added). Read in its proper context, the
ITU’s purpose for requesting this information is to confirm
the space station’s technical capabilities. And, as one would
expect, the non-exhaustive list includes documents that
describe the satellite’s technical capabilities—for example,
the “manufacturer-provided and certified frequency plan for
the satellite.” Id. Thus, even though the record does not
indicate the precise information that is included in a satellite
network operator’s license application, the logical inference
we draw from the ITU’s repeated focus on the satellite’s
“transmitting and receiving” capabilities is that an operator’s
license application likely includes such information. We
therefore reject Spectrum Five’s argument that the ITU will
likely consider EchoStar 6’s licensing relevant to whether it
had the “capability” required under Article 11.44B.
But even if this uncertainty concerning the relevance of
domestic authority to the ITU does not, standing alone, render
Spectrum Five’s claim insufficiently likely of redress, it
clearly does when considered in combination with other
aspects of the ITU’s decision making process. In a May 2012
ITU letter to member nations, the ITU addressed bringing into
use a frequency assignment through “satellite leasing,” which
occurred here.9 The ITU explained that the responsible
9
As discussed above, see supra Part I, because EchoStar 6 was
initially launched in July 2000 pursuant to FCC authority, the
United States (acting through the FCC) remained the responsible
administration. See STA Order, 28 FCC Rcd at 10415 ¶ 8
(explaining “the basis for U.S. involvement in the authorization of
the EchoStar 6 operations at the W.L. orbital location”). And as
recounted above, as part of the coordination agreement between
EchoStar and DIRECTV, the United States (through the FCC)
would not raise any objections with the ITU regarding the
BERMUDASAT-1 filing.
18
administration has 90 days to make any objections to the use
of its space station:
Regarding satellite leasing, WRC-12 [The World
Radiocommunication Conference, Geneva, 2012]
recognizes that an administration can bring into use, or
continue the use of, frequency assignments for one of
its satellite networks by using a space station which is
under the responsibility of another administration or
intergovernmental organization, provided that this
latter administration or intergovernmental
organization, after having been informed, does not
object, within 90 days from the date of receipt of
information, to the use of this space station for such
purposes.
Pet’r’s Addendum at 5 (emphasis added). Based on the plain
language of this letter, it is unclear to us whether an objection
after the 90-day period would cause the ITU to even
reconsider whether the U.K.’s filing had been brought into
use, let alone ultimately suppress the filing. At oral argument
we asked counsel for Spectrum Five whether the ITU has had
an occasion to elaborate on the 90-day objection requirement,
and counsel was not aware of this happening. Oral Arg.
12:40–13:30. On April 4, 2014, however, Spectrum Five
filed a Rule 28(j) letter, see FED. R. APP. P. 28(j), that
included correspondence from the ITU’s
Radiocommunication Bureau shedding light on this issue. In
particular, the correspondence addressed the Netherlands’
inquiry “concerning the bringing into use under No. 11.44B
of the frequency assignments to the BERMUDASAT-1
satellite network at 96.2°W.” Pet’r’s April 4, 2014 28(j) Ltr.
Ex. A, at 1. At the outset, the ITU stated that it “is not in a
position to act upon and has no direct involvement in the
regulatory and legal frameworks internally established by an
19
administration,” and that “[i]rrespective of the outcome of the
USA court case referred to in your telefax, the Bureau’s
consideration of the issue of satellite leasing would depend on
information provided to the Bureau by the administrations
involved and international regulations in force.” Id. at 2. Of
significance here, the ITU stated:
[R]egarding the use of a space station of another
administration . . . , the Bureau is of the view that it
would have no option than to initiate an investigation
on the regulatory status of a satellite network for which
the recorded frequency assignments would have been
brought into use by using a space station under the
responsibility of another administration or
intergovernmental organization if an objection to such
use is communicated to the Bureau by the responsible
administration. Such investigation could lead to a
suitable modification or proposed cancellation of
frequency assignments to a satellite network from the
[Master International Frequency Register] for not
having been brought into use within the required
regulatory period, as the case may be.
Id. Notably, the Netherlands neither asked nor did the ITU
address whether the 90-day objection rule would apply. And
even if we make the speculative assumption that the 90-day
rule does not apply, the correspondence makes clear only that
if the “responsible administration” (the FCC on behalf of the
U.S.) objects, then the ITU would initiate an investigation.
That’s it. Based on that investigation, the ITU may reaffirm
its initial determination, or it “could” reach a different
conclusion. There is no indication that vacatur of the STA
Order would require the FCC to raise a post hoc objection
before the ITU. And even if the FCC would object, all that
accomplishes is to put Spectrum Five back to square one: the
20
ITU would reconsider its determination. Spectrum Five’s
burden is heavier than this. It must show that vacatur of the
Commission’s order will significantly increase the likelihood
that the ITU will suppress the U.K.’s filing. Evans, 536 U.S.
at 464; Klamath Water, 534 F.3d at 739.10 Spectrum Five,
however, has not “adduce[d] facts” demonstrating how the
ITU reconsideration process works, much less demonstrating
that the ITU would likely reach a different conclusion upon
reconsideration. U.S. Ecology, 231 F.3d at 25.
Furthermore, this correspondence also renders inapposite
the cases relied upon by Spectrum Five to satisfy the
redressability requirement. Americans for Safe Access v.
Drug Enforcement Admin., 706 F.3d 438, 448 (D.C. Cir.
2013), cert. denied, 134 S. Ct. 267 (2013), and cert. denied,
10
We note that Spectrum Five has not claimed a procedural injury
as a result of the FCC’s actions. When a petitioner asserts an injury
arising from an alleged violation of their procedural rights, a “lesser
showing of redressability suffices.” Renal Physicians, 489 F.3d at
1278 (citing Lujan, 504 U.S. at 572 n.7). In procedural-injury
cases, the claimed injury arises from an alleged failure on the part
of the injury-causing party to adhere to a prescribed process in
adjudicating the petitioner’s substantive rights, rather than from the
substantive decision itself. Id. Accordingly, the petitioner has
standing “if there is some possibility that the requested relief will
prompt the injury-causing party to reconsider the decision that
allegedly harmed” the petitioner. Massachusetts v. EPA, 549 U.S.
497, 518 (2007). See also Sugar Cane Growers Cooperative of
Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002) (“A [litigant]
who alleges a deprivation of a procedural protection to which he is
entitled never has to prove that if he had received the procedure the
substantive result would have been altered.”). Here, Spectrum Five
seeks a specific, substantive result: removal of the
BERMUDASAT-1 filing from the ITU Master International
Frequency Register. Pet’r’s Br. at 33. Thus, the lower standard of
redressability does not apply.
21
134 S. Ct. 673, 187 L. Ed. 2d 422 (2013); Town of
Barnstable, Mass. v. FAA, 659 F.3d 28, 32 (D.C. Cir. 2011).
Unlike here, in those cases we concluded that the ultimate
decision by the third party (domestic agency) not before the
court depended significantly—if not solely—upon our ruling
on the petitioner’s challenge to the agency action before us.
See Americans for Sate Access, 706 F.3d at 440; Town of
Barnstable, 659 F.3d at 31–32. Here, in contrast, this Court
would not have any impact on the ITU’s reconsideration of its
determination. As the ITU stated, its decision will depend on
its independent assessment, “irrespective” of our views.
Pet’r’s April 4, 2014 28(j) Ltr. Ex. A, at 1. Thus, there is no
causal link between our decision and the ITU’s determination
of the merits. We conclude, therefore, that Spectrum Five has
not shown “that it is likely as opposed to merely speculative,”
Klamath Water, 534 F.3d at 738, that vacatur of the STA
Order will redress its asserted injury.
B.
Finally, we turn briefly to the four additional steps
Spectrum Five asks us to take.11 See supra Part II. None of
these requested actions alters our conclusion.
11
Spectrum Five asks this Court to direct the FCC to:
(1) notify[] the ITU that EchoStar 6 did not have lawful
authority to operate at 96.2° W.L., (2) notify[] the ITU that,
as a result, the United States does not consent to the U.K.’s
use of EchoStar 6 to bring the BERMUDASAT-1 filing
into use, (3) revok[e] its ratification of the coordination
agreement privately negotiated among EchoStar,
DIRECTV, and SES Bermuda, which was a prerequisite
for the U.K.’s claim to have brought into use the
BERMUDASAT-1 filing, and (4) inform[] the ITU that the
BERMUDASAT-1 filing expired because EchoStar 6 was
22
Three of the four requests essentially ask us to direct the
FCC to inform the ITU that the BERMUDASAT-1 filing was
not brought into use. Even if we agreed we have authority to
do so, this would lead only to the ITU reconsidering its prior
determination, which falls short of Spectrum Five’s burden of
demonstrating redressability.
The remaining request asks us to order the FCC to revoke
its ratification of the coordination agreement between
EchoStar, DIRECTV, and SES. Pet’r’s Br. 35–36. Again,
even assuming we have the authority to require the FCC to
revoke its ratification of the coordination agreement, granting
this request—along with the other three requests—would not
satisfy Spectrum Five’s burden, because the May 2012 ITU
letter does not indicate that an out-of-time, post-hoc
“objection” by the FCC is likely to cause the ITU to remove
the BERMUDASAT-1 filing from the ITU Master
International Frequency Register. In sum, even if we reached
a decision that is favorable to Spectrum Five, whether the ITU
would reach a decision favorable to Spectrum Five and that
redresses Spectrum Five’s injury remains speculative.
III.
For the foregoing reasons, we dismiss Spectrum Five’s
petition for lack of standing.
So ordered.
not successfully maintained at 96.2° W.L. by the April 14
deadline.
Pet’r’s Br. at 35–36.