February 18, 2021 BY ELECTRONIC FILING Ms. Marlene H. Dortch Secretary Federal Communications Commission 45 L Street, NE Washington, DC 20554 Re: Viasat, Inc. Ex Parte Presentation, IBFS File No. SAT-MOD-20200417-00037 Dear Ms. Dortch: Viasat, Inc. responds to the letter filed by Space Exploration Holdings, LLC (“SpaceX”) on February 4, 2021,1 which concerns the petition that Viasat filed on December 22, 2020, pursuant to Section 1.1307(c) of the Commission’s rules.2 That petition requests that the Commission fully evaluate the environmental impacts of SpaceX’s pending modification application under the National Environmental Policy Act (“NEPA”).3 Viasat’s NEPA Petition, which was prompted by several third-party studies, establishes that grant of SpaceX’s pending modification application would be an action that “may have a significant environment impact”—the relevant standard under Section 1.1307(c).4 Accordingly, preparation of an environmental impact statement or environmental assessment is required by law. Nothing in SpaceX’s letter undermines that necessary conclusion. Indeed, even if SpaceX’s flawed arguments had merit, environmental review of its pending application would 1 See Letter from SpaceX to FCC, IBFS File No. SAT-MOD-20200417-00037 (Feb. 4, 2021) (“SpaceX Letter”). 2 See Petition Pursuant to Section 1.1307(c) of Viasat, Inc., IBFS File No. SAT-MOD- 20200417-00037 (Dec. 22, 2020) (“Viasat NEPA Petition”); Reply of Viasat, Inc. in Support of Its Petition Pursuant to Section 1.1307(c), IBFS File No. SAT-MOD-20200417-00037 (Jan. 19, 2021) (“Viasat NEPA Reply”); see also 47 C.F.R. § 1.1307(c). 3 See 42 U.S.C. §§ 4321 et seq. 4 47 C.F.R. § 1.1307(c). 901 K Street NW, Suite 400, Washington, DC 20001, U.S.A. T: +1 202 383 5050 www.viasat.com still be required.5 Regardless, Viasat takes this opportunity to refute each of SpaceX’s arguments in turn. I. SpaceX Is Not Yet Permitted to Launch or Operate, at Any Altitude, the Satellites That It Seeks to “Relocate” Through Its Modification Application Viasat’s NEPA Petition establishes that the Commission must conduct an environmental review of SpaceX’s pending modification application because grant of that application would significantly impact the environment. In its Opposition, SpaceX claimed that its application merely seeks to “relocate” satellites that are already authorized, and therefore could not result in any additional harm to the environment.6 In its Reply, Viasat demonstrated that this characterization is inaccurate, as grant of SpaceX’s pending modification application would permit SpaceX, for the first time, to deploy an additional 2,8147 operating satellites—which SpaceX cannot currently deploy at any altitude.8 More specifically, Viasat explained that a condition to SpaceX’s NGSO system authorization precludes it from launching or operating those satellites at any altitude until the Commission grants a separate modification application approving SpaceX’s updated orbital debris mitigation plan for those satellites. That condition has been in place since the grant of SpaceX’s initial system authorization,9 and the order granting SpaceX’s last NGSO system modification application similarly provided that: 5 For example, if the Bureau were to analyze only the incremental impact of “relocating” 2,814 satellites to lower altitude, grant of SpaceX’s application would still be an action that “may have a significant environmental impact,” requiring further environmental review under Section 1.1307(c). Viasat demonstrated as much in its NEPA Petition and Reply. 6 See Opposition of Space Exploration Holdings, LLC to Petition Pursuant to Section 1.1307(c) of Viasat, Inc., IBFS File No. SAT-MOD-20200417-00037, at 10–11 (Jan. 6, 2021) (“SpaceX Opposition”). 7 After Viasat filed its NEPA Petition, the Bureau granted SpaceX’s application in part with respect to 10 satellites. See Space Exploration Holdings, LLC, DA 21-34, IBFS File No. SAT-MOD-20200417-00037 (Jan. 8, 2021) (“Partial Grant Order”). Those satellites are included in the 2,824 satellites that would be authorized by grant of the application in its entirety. 8 Viasat NEPA Reply at 6–9. Viasat’s NEPA Petition did not focus on SpaceX’s lack of authorization to deploy those satellites at any altitude because SpaceX first put the status of such authorization at issue in its Opposition, erroneously seeking to avoid NEPA review by claiming that the satellites at issue were already authorized to be deployed at higher altitudes. See SpaceX Opposition at 3–4. Viasat’s Reply rebutted that claim, while maintaining that NEPA review is required either way. 9 See Space Exploration Holdings, LLC, 33 FCC Rcd 3391, at ¶ 40.p (2018) (“Initial Authorization Order”). 2 Upon finalization of its space station design and prior to initiation of service, SpaceX must seek and obtain the Commission’s approval of a modification containing an updated description of the orbital debris mitigation plans for its system for any satellites other than those that will be operated at an altitude of 550 km as proposed in this modification.10 In its letter, SpaceX suggests that it is permitted to deploy all of the satellites covered by its existing NGSO system license because the first paragraph of the order that initially authorized its NGSO system purports to “authorize” that system.11 That assertion ignores other language explicitly making that “authorization” a conditional one.12 The mere fact that the Commission referred to its order as an “authorization” does not mean that SpaceX can deploy without regard to specified conditions. SpaceX next asserts that because the condition includes the phrase “prior to initiation of service,” it supposedly “does not affect SpaceX’s authorization to launch spacecraft, only its authority to initiate service after they have been deployed.”13 But SpaceX ignores that, just last month, the Bureau found that SpaceX may not deploy satellites until the condition is satisfied. Specifically, in partially granting SpaceX’s pending modification application, the Bureau found that SpaceX could not have deployed satellites at higher altitudes—even though such operations were nominally “authorized” by SpaceX’s NGSO system license—because “authorization for these satellites could not be utilized until a favorable determination on a debris mitigation plan.”14 SpaceX also ignores that, in adopting the condition, the Commission was clearly motivated by its desire to evaluate the potential risks that SpaceX’s operations could pose to orbital safety before allowing those operations to proceed. Since those risks arise from the launch and physical presence of satellites in orbit, it would make little sense to allow SpaceX to launch its satellites freely, subject to a review of its orbital debris mitigation plan only after the fact. 10 See Space Exploration Holdings, LLC, 34 FCC Rcd 12307, at ¶ 19.q (2019) (“Second Modification Order”). The Partial Grant Order does not alter this condition (other than to include a reference to the 10 additional satellites now fully authorized to operate at 560 km). See Partial Grant Order ¶ 19.t; see also id. ¶ 19 n.59 (expressing intent to “replicate the full set of conditions applicable to SpaceX operations as specified in prior orders”). 11 See SpaceX Letter at 3 & n.8. SpaceX’s initial authorization is no longer current. 12 See Initial Authorization Order ¶ 15 (deciding to “condition grant of SpaceX’s application on the Commission’s approval of an updated description of the orbital debris mitigation plans for its system”); see also, e.g., Second Modification Order ¶ 19; Partial Grant Order ¶ 19. 13 SpaceX Letter at 4 (emphasis in the original). 14 Partial Grant Order ¶ 15 n.48 (emphasis added). 3 And SpaceX ignores the rest of the “plain language” of the condition as well as other Commission statements with respect to the meaning and intent of the condition—all of which undercut SpaceX’s interpretation. Notably: • The Commission initially imposed the condition on SpaceX after finding that “it would be premature to grant SpaceX’s application based on its current orbital debris mitigation plan.”15 The Commission therefore decided to “condition grant of SpaceX’s application on the Commission’s approval of an updated description of the orbital debris mitigation plans for its system.”16 And SpaceX’s application sought both launch and operating authority.17 • In imposing the condition, the Commission specifically agreed with NASA, which had raised concerns related to the potential risks associated with “applicants seeking to deploy a large number of satellites (i.e., over 4,000).”18 A condition that allowed SpaceX to launch (i.e., deploy) its satellites before providing a satisfactory orbital debris mitigation plan would not have addressed those concerns. • The plain language of the condition requires SpaceX to file a modification application and updated orbital debris mitigation plan “[u]pon finalization of its space station design”—an event which necessarily must occur well in advance of launch (and “prior to initiation of service”19), as satellites cannot be constructed, let alone launched, if their design is not final. SpaceX ignores this language completely. • The Commission subsequently granted SpaceX’s first modification application, finding that SpaceX had satisfied the condition with respect to 1,584 satellites SpaceX had sought to “relocate” to ~550 km at that time. The Commission observed that further scrutiny of SpaceX’s underlying showing would “delay[] the deployment of SpaceX’s system”20—reflecting the Commission’s interpretation of the condition as precluding the deployment/launch of SpaceX’s satellites until the Commission deemed the condition satisfied. 15 Initial Authorization Order ¶ 15 (emphasis added). 16 Id. (emphasis added). 17 Id. at ¶ 1. 18 Id. at ¶¶ 13, 15 (emphasis added). 19 Id. at ¶ 40.p. The phrase “prior to initiation of service” may be a holdover from similar conditions included in earlier orders authorizing non-U.S.