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Court Opinion - SpectrumFive LLC v. FCC (D.C. Cir.)

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Released: July 11, 2014
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USCA Case #13-1231 Document #1502020 Filed: 07/11/2014 Page 1 of 22

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

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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

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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.

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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.”).

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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.

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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).

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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.

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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.

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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.”

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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,

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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

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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).

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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).

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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.

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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

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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[.]

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USCA Case #13-1231 Document #1502020 Filed: 07/11/2014 Page 17 of 22

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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.

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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

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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

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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.

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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

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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.

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