Dish Wants Rehearing on FCC's Starlink Authorization

The appeal is narrowly focused on Dish’s arguments that the D.C. Circuit’s three-judge panel should have ruled that the FCC needed to consider Dish’s evidence of likely interference and that the FCC incorrectly waived a rule requiring a favorable finding from the International Telecommunication Union (ITU). If granted, Dish’s appeal wouldn’t affect the other aspects of the case, such as the rulings the FCC approval of the network doesn’t violate the National Environmental Policy Act, an attorney following the case told us. Viasat and the Balance Group -- the other parties in the original case – didn’t join Dish’s appeal, and the deadline for such filings was Tuesday.

The fate of Dish’s specific appeal is unclear, but en banc appeals are widely seen as long shots, attorneys told us -- the D.C. grants a very small number of them. Dish’s appeal is highly technical and "arcane," one attorney told us. "The chances of the D.C, Circuit taking the en banc are extremely low," said Jim Dunstan, Tech Freedom general counsel. Tech Freedom filed an amicus brief in the Viasat case in support of SpaceX. The courts generally defer to the expert agencies on technical matters, Dunstan said. The FCC, Dish and Viasat didn’t comment.

The original panel ruled the FCC didn’t need to consider Dish’s interference evidence because the evidence relied on a different method for calculating interference than the ITU method used by the FCC, and also upheld an FCC waiver of the same rule to permit SpaceX to proceed without ITU approval, Dish said. “In doing so, the panel created a direct conflict with two authoritative precedents of this Court that DISH cited in its brief without addressing or even acknowledging them,” said the appeal filing.

Since the FCC was using the ITU rule in its evaluation of SpaceX’s applications, the FCC was “obligated” to consider Dish’s evidence despite administrative rules barring challenges to existing rules related to licensing proceedings based on precedents established in prior cases Functional Music v. FCC and Graceba Total Communications v. FCC, said the appeal filing. Dish also argued that the D.C. Circuit misconstrued the rule to read that use of the ITU method was required. “Rehearing to correct the panel’s manifest error is necessary and appropriate,” the filing said.

The Viasat ruling also contradicts U.S. Supreme Court precedent that agencies are allowed to modify rules with interpretations applied retroactively through licensing proceedings, Dish said. “Rehearing is thus appropriate to confirm that an agency does have the power (and, thus, responsibility) to follow its statutory commands in the context of an adjudication.”

SpaceX has also undermined the D.C. Circuit ruling by questioning the ITU method’s interference determinations in another proceeding. A SpaceX letter mentioned “a well recognized flaw in the ITU methodology for determining compliance with downlink PFD limits in portions of the Ka-band,” Dish said. “Had the panel been aware of the parties’ consensus that the ITU’s methods suffer from well-recognized flaws, it likely would not have upheld the Commission’s unquestioned adherence to the ITU process,” Dish said. “Absent rehearing by the panel, consideration by the full Court is necessary to secure and maintain the uniformity of this Court’s decisions and consistency with the precedents of the Supreme Court.”