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Rival Wants Regulators to Cripple Elon Musk’s Satellite Project

Starlink’s fight for the future.
August 3, 2021
Rival Wants Regulators to Cripple Elon Musk’s Satellite Project
A SpaceX Falcon 9 rocket is seen in this time exposure from Cocoa Beach, Florida as it launches the company's third Starlink mission on January 6, 2020 from Cape Canaveral Air Force Station, in Cape Canaveral, Florida. The rocket is carrying 60 Starlink satellites as part of a planned constellation of thousands of satellites designed to provide internet services around the world. (Photo by Paul Hennessy/NurPhoto via Getty Images)

The degrowth left and the rad-trad right can agree on this much: We should all spend more time in nature; more time connecting with our families; more time reflecting on life, existence, and the universe; and a lot less time responding to emails, phone calls, and Slack messages. Let go of the smartphone. Take a deep breath. Smell the roses.

Simple, right?

As Lord Copper, the mad media baron in Evelyn Waugh’s comic novel Scoop, often hears from his overly loyal assistant: “Up to a point.”

For a great many people, a bigger, more urgent problem than occasionally refreshing and recharging by disconnecting from the internet is the need, sometimes dire, to connect in the first place. About 15 percent of the world’s population—more than a billion of us—lack access to broadband internet. Perhaps those who want to close this “digital divide” are tools of the Machine, the grand techno-authoritarian Panopticon of desacralizing, homogenizing, mechanizing corporate control. Or perhaps they just want those living in poverty, and particularly those living in rural poverty, to gain access to remote education, virtual healthcare, and basic e-finance.

How to get these humble masses online? Until recently, satellite broadband was not an intuitive answer. Rockets are expensive. Satellites are complex. Space is dangerous. Because of the risk involved, satellite internet firms have tended to engage in a limited number of launches, to equip their satellites with older telecommunications hardware, and to target niche markets for their service. Despite (or because of) that caution, the industry is littered with failure and bankruptcy.

Then along came SpaceX, the aerospace firm founded by Elon Musk in 2002. By designing, building, and perfecting reusable rockets, SpaceX drastically lowered the price of launches. Cheaper launches means more launches. More launches means more satellites. More satellites means lower orbits (since each satellite can cover a smaller area) and less latency (since signals travel shorter distances). SpaceX has also invested in shrinking its satellites (further increasing the number that can be launched), and borne the expense (and risk) of outfitting them with the latest technology.

The goal is to build a network of satellites, called Starlink, that will offer widespread, reliable, affordable broadband internet anywhere on the planet. The goal is already well within reach. Launching them on its recyclable Falcon 9 rocket, usually sixty at a time, SpaceX has to date put about 1,800 satellites into orbit. Tens of thousands more could follow. Although the network is currently being tested on just a few thousand customers, SpaceX aims to have 40 million subscribers by 2025. Musk expects global availability (in those countries that grant regulatory approval) as soon as this fall.

True, at $100 a month for service, plus a $500 fee for a dish and router, Starlink is not, or not yet, the final step in bringing broadband internet to the world’s rural poor. But early reviews suggest that it is the best remote internet service yet available. And as SpaceX continues to test, launch, tweak, and repeat, and as new competitors, such as Amazon and OneWeb, step forth and do the same, costs will continue to fall. One of the United Nations’ Sustainable Development Goals is to “provide universal and affordable access to the Internet in [the] least developed countries.” We can all rejoice at the prospect that, in time, SpaceX and its competitors will play a major role in turning that aspiration into reality.

Simple, right?

“A battle for the sky is raging,” frets a journalist in Scientific American, “and the heavens are losing.”

Although critics oppose Starlink on a number of grounds—increased risk of space collision, accumulation of orbital debris, launch and reentry emissions—the most prominent objection, by far, is that its satellites sully the view. At night, Starlink satellites are occasionally visible to the naked eye. And although SpaceX has gone to great lengths to dim the satellites’ reflection, for instance by placing visors on them, they continue to photobomb Earth-bound astronomers. SpaceX’s efforts have not mollified the pundits, who continue to warn of the “disastrous consequences” of light pollution, and to worry that the dots traversing the sky will “forever chang[e] our view of the cosmos.” (Never mind the fact that for most of the world’s population, our view of the cosmos has already been profoundly affected by city lights that obscure the night sky.)

Earlier this year, those who would slam the brakes on Starlink found a champion. Who? Why, of course, a rent-seeking rival of the company doing the innovating. A firm seeking to achieve through litigation and regulation what it is failing to achieve through competition in the market. Much as Baptists and bootleggers like Sunday laws, environmentalists and slow-footed corporations like regulatory delay. It is an old story.

In 2018 the Federal Communications Commission approved the launch of the first batch of Starlink satellites. A year later, SpaceX sought to modify its permit, so that it could lower the altitude of about half of those approved satellites. Satisfied with SpaceX’s plans to ensure that the satellites do not collide with other space objects, emit orbital debris, or strike Earth on re-entry, the FCC granted the application. Then, in 2020, SpaceX applied to move the remaining satellites down (thus placing all the satellites from the initial permit at the lower orbit). That’s when Viasat, a company with a single satellite at the lower altitude, appeared. At first Viasat raised concerns about collision risks and signal interference. Sensing, perhaps, that those more conventional arguments were likely to go nowhere, it later tried something new, challenging the modification under the National Environmental Policy Act.

Signed into law by President Nixon in 1970, NEPA requires federal agencies to assess the environmental impact of major government action. Such “action” includes the granting of permits. An agency may categorically exclude from assessment actions that reliably produce no environmental effect. And sometimes an agency may issue a comparatively short “environmental assessment” that explains why an action has no significant impact on the environment. Otherwise, the agency must produce a full-blown “environmental impact statement” analyzing the action in detail.

NEPA does not dictate specific outcomes; it simply requires that, before a project proceed, information about it be gathered and reported. You might think that, being a mere procedural statute, NEPA is no big deal. But it is a very big deal. The NEPA compliance process has undergone the kind of hypertrophic growth typical of modern government in general. In the early days, an environmental impact statement might run ten pages. Today 650 pages is the norm, and it takes 4.5 years, on average, to complete one. The United States is an expensive place to build things—one of the most expensive in the world—and NEPA is an obvious reason why.

Although meant to serve the environment, NEPA has become a favorite weapon of businesses, landed interests, and NIMBYs. Anyone, in short, who favors stagnation or is happy with the status quo. Technically a party may not use NEPA to further its private interests; but if a party says it’s acting out of concern for nature, a court generally has to accept the claim at face value. And so we witness Viasat trying to use NEPA to slow SpaceX’s deployment of satellites, even though Viasat’s ultimate goal is—to deploy satellites. Behold, a routine NEPA case.

The FCC categorically excludes satellite licensing from full assessment under NEPA. Viasat failed, the agency concluded, to establish a risk of significant environmental impact sufficient to justify departing from that categorization and directing further study. Most of the potential issues Viasat flagged—collisions, debris, emissions—were either speculative or had already been investigated, and found to be negligible, in other government orders and reports.

When it came to light pollution, Viasat took the kitchen-sink approach, arguing that SpaceX should have to assess Starlink’s effect not only on astronomers and stargazers, but also on religious practices, cultural beliefs, and human health. This even though lowering the satellites will reduce the time they spend reflecting the sun, and even though SpaceX is well on its way, by trial and error, to making its satellites invisible to the unaided eye. And yes, “culture” is part of the “environment” under NEPA, although how SpaceX would measure Starlink’s cultural impact on the night sky—which, the last anyone checked, is already full of planes—is a mystery. This much is clear: We should be thankful that the Wright brothers never faced NEPA litigation.

The FCC approved SpaceX’s modification request. Several parties now seek review in the U.S. Court of Appeals for the D.C. Circuit.

The court might begin by asking whether NEPA applies in outer space at all. It’s an open question whether it even applies beyond U.S. territory, such as on the high seas. There is a longstanding presumption that, unless Congress plainly says otherwise, American law governs only in America. This makes sense. It’s a waste of time setting rules for places our government does not control. And it could disrupt our relationship with other nations, if our courts start issuing decrees about what may and may not be done in places where we are not widely recognized as sovereign. “United States law governs domestically,” the Supreme Court has written, “but does not rule the world.”

At any rate, even if NEPA extended to remote, sovereignless places on Earth—several courts have ruled that it does not—Viasat is seeking something else altogether. Although well aware, while drafting NEPA, of advances in space (the bill was in committee as Neil Armstrong stepped foot on the Moon), Congress expressed no desire that it apply there. On the contrary, NEPA refers repeatedly to “man’s environment,” the “human environment,” and the “biosphere.”

Protecting the environment is doubtless a pressing worldwide challenge. But as one judge remarked, while confining NEPA to our territory, “other cultures, other countries at diverse stages of development, will react in their own way to the same global problem. Did Congress mean for NEPA to address environmental concerns for those countries too?” For some nations, obtaining rural broadband internet as soon as possible is more important, desperately more important, than cutting trace launch emissions, avoiding a minuscule chance of orbital collision, or ensuring that comfortable people are pleased with the character of the night sky.

“Our goal is not to go bankrupt,” Elon Musk quips, when asked what Starlink aims to do. He is right to manage expectations. There are all kinds of ways Starlink could fail. Similarly, it is easy to imagine Starlink merely limping along, serving a few First World rural customers living on an ever-more urban planet, and perhaps supplying some backhaul service to larger internet providers.

Should it succeed, though, Starlink will be just a small piece of a much larger vision. It’s no secret that Musk wants to colonize Mars. Revenue from Starlink could help pay for that project. For a hint that satellite broadband and Musk’s Mars dream are connected, look no further than the fine print of Starlink’s terms of service. “For Services provided on Mars,” it says, “the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities.”

If you could travel in time, just once, would you visit the past or the future? There’s a chance, to be sure, that, assuming you could navigate all the ignorance, misery, affliction, and death, you might find the past a little more enchanted, a little more rooted, a little more in touch with creation. The possibilities in the future, meanwhile, are limitless. As neurobiology, astrophysics, computer engineering, materials science, and other fields advance, the range of human experience, both physical and virtual, could become as rich, deep, varied, and intricate as the Mandelbrot set. Who says tomorrow can’t be more connected, radiant, and spiritual than yesterday? We are still as children gath’ring pebbles on the shore, as the great ocean of truth lay outstretched before us. We have only just begun to explore.

Corbin Barthold

Corbin Barthold is internet policy counsel at TechFreedom. Twitter: @corbinkbarthold.