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 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,
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.
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,
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.
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,
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).
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)
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. 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.
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:
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).
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:
Id. at 35-36.
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.
"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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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).
Further, "[w]hen redress depends on the cooperation of a third party, `it becomes the burden of the [party asserting
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.
In support of its contention, Spectrum Five relies on Article 11.44 B of the ITU Radio Regulations. This article states in relevant part:
ITU Radio Regs., Art. 11.44 B. 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 11.44 B. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 152, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) ("In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a
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:
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.
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. 11.44 B 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 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:
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 ITU would reconsider its determination. Spectrum Five's burden is heavier
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, ___ U.S. ___, 134 S.Ct. 267, 187 L.Ed.2d 151 (2013), and cert. denied, ___ U.S. ___, 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 Safe 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.
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.
Pet'r's Br. at 35-36.