Viasat, Inc. v. FCC

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 L. 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

10

1342, 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.