SpaceX can keep launching broadband satellites despite a lawsuit filed by Viasat, a federal appeals court ruled Tuesday.
Viasat sued the Federal Communications Commission in May and asked judges for a stay that would halt SpaceX’s ongoing launches of low Earth orbit (LEO) satellites that power Starlink Internet service. To get a stay, Viasat had to show that it is likely to win its lawsuit alleging that the FCC improperly approved the satellite launches.
A three-judge panel at the US Court of Appeals for the District of Columbia Circuit was not persuaded, saying in a short order that “Viasat has not satisfied the stringent requirements for a stay pending court review.” The judges did grant a motion to expedite the appeal, however, so the case should move faster than normal.
Viasat fears Starlink competition
Viasat is worried that its slower Internet service delivered from geostationary satellites will lose customers once Starlink is out of beta and more widely available. Viasat has some LEO-satellite plans but nothing close to the thousands of satellites that SpaceX is launching or the 1,500 or so SpaceX already has in operation.
Viasat alleged that the FCC did not comply with the National Environmental Policy Act (NEPA) when it approved SpaceX satellite launches because the commission “refused to conduct any environmental assessment.” Viasat told the DC Circuit court that SpaceX launches should be halted because of potential environmental harms when satellites are taken out of orbit; light pollution that alters the night sky; orbital debris; collision risks that may affect Viasat; and because “Viasat will suffer unwarranted competitive injury.”
“This court is likely to vacate the [FCC] order and direct the commission to conduct at least some NEPA review of Starlink,” Viasat wrote. “Any [SpaceX] launches should occur after that review, not before. This court should stay the order pending its review.”
Viasat argued that a stay won’t harm SpaceX much if the FCC order is ultimately upheld. “If this court upholds the commission’s NEPA ruling, the only effect of the stay would be to delay SpaceX’s ability to launch satellites pursuant to the [FCC] order by some number of months,” Viasat wrote.
Viasat’s limited low Earth plans
Viasat explained its financial concerns by writing that SpaceX “intends to use its environmentally irresponsible constellation to extend its reach geographically and directly compete with Viasat. The rate at which SpaceX is launching satellites makes both the extent and risk of harm during this appeal particularly high.”
Viasat said it “operates at least one satellite at the same altitude as Starlink” and that it has a “contract with the Department of Defense to operate a high-value LEO satellite in the same orbital range as the Starlink satellites, which it intends to launch in the next six to twelve months.” Viasat alleged that “failed SpaceX satellites and debris from a collision involving a SpaceX satellite can damage, disable, or destroy Viasat’s satellites.”
Dish Network is also fighting SpaceX’s FCC approval, and Dish’s case was consolidated with Viasat’s appeal. The judges set an August 6 deadline for Viasat and Dish to file opening briefs. The FCC will have until September 21, and SpaceX will have a deadline of September 28. Dish and Viasat will have until October 12 to file replies, and final briefs are due October 26. Oral arguments will follow “on the first appropriate date” after briefs.
FCC defends SpaceX license
The FCC and SpaceX last month filed briefs opposing Viasat’s motion for a stay. The FCC told judges that it “closely examined and reasonably rejected Viasat’s claims… As to each category of alleged environmental impact, the Commission considered the alleged effect in detail and found insufficient evidence that SpaceX’s license modification… requires further review.”
The FCC has given SpaceX several approvals of satellite launches. In 2018, the FCC approved 4,408 satellites at altitudes of 1,100-1,300 km. In 2019, the agency granted a license modification that cut the orbital altitude of 1,584 of those satellites in half.
The FCC order that Viasat challenged was another license modification granted in April 2021 that lowered the altitude of the remaining 2,824 satellites to 540-570 km. The FCC said in its court brief that the license change fell into a category “of actions that normally do not have a significant effect on the human environment.” Under this “categorical exclusion,” a review is not required by NEPA except in “extraordinary circumstances” in which there may be “significant environmental impact,” the FCC said.
The FCC did require SpaceX to explain how it will prevent orbital debris, collisions in space, and casualties upon satellite reentry. The FCC also imposed conditions on the license.
“SpaceX’s orbital debris mitigation plan explained that the satellites are capable of maneuvering to avoid collisions and that the lower altitude helps minimize debris by ensuring satellites more quickly descend into the atmosphere and are destroyed at the end of their useful lives,” the FCC told judges. “SpaceX also addressed the potential casualty risk resulting from portions of satellites surviving reentry by explaining that SpaceX had revised the design of all but the initial 75 satellites so that ‘no components of… the satellite will survive atmospheric re-entry, reducing casualty risk to zero.'” The FCC said it “granted the modification with conditions including compliance with current and future orbital debris rules.”
SpaceX also has FCC approval for another 7,500 satellites with even lower orbits.
FCC and SpaceX in sync
The FCC had more arguments against Viasat’s motion, telling judges that Viasat “relies on speculative assertions of primarily economic harm that do not demonstrate a likelihood that Viasat has standing, much less show irreparable injury justifying the extraordinary remedy of a stay pending appeal.” Halting the satellite launches would create harm “to SpaceX and to the public interest in advancing broadband satellite service to remote or underserved areas of the United States,” the FCC said.
SpaceX’s filing alleged that Viasat made a “transparent bid to co-opt the National Environmental Policy Act and the procedure for extraordinary stay relief as weapons of commercial warfare,” adding:
Viasat’s newfound environmentalism is belied by its actions at every turn. Viasat failed to raise any environmental concerns in connection with any other satellite authorization, including SpaceX’s authorization to operate Starlink satellites at a different altitude and its prior request (nearly identical to the one at issue here) to lower many of those satellites. To the contrary, Viasat—a non-US licensee that has previously sought to escape Commission regulation altogether—ultimately relies on “competitive harm” to support its stay request. But stifling competition and protecting profits is not what NEPA is about.