ITU’s Findings Lack ‘Force’ of a Treaty, Dish Tells D.C. Circuit

During oral argument Monday on Dish Network’s challenge to the FCC’s approval of SpaceX's second-generation satellite constellation (see 2312110031), Judge Neomi Rao asked whether a treaty governs the relationship between the U.S. and the ITU. “The answer is yes,” FCC attorney James Carr wrote to the clerk of the U.S. Appeals Court for the D.C. Circuit Wednesday (docket 23-1001). Adopted in 1992, the ITU’s Constitution and Convention “is a treaty establishing the legal basis for the ITU and defining its purpose and structure,” Carr said. Earlier, Rao questioned whether an argument that the FCC impermissibly subdelegated authority to the ITU was inherently a challenge of FCC rules. Dish's counsel, Steptoe’s Pantelis Michalopoulos, immediately responded to Carr’s missive with his own letter to the D.C. Circuit clerk, "correct[ing] a possible misunderstanding” that Carr's missive raised, he wrote. “While the ITU has been created by treaty, the ITU’s findings do not have the force of a treaty, and the FCC has correctly not argued in its brief that they have such force,” Michalopoulos wrote. The ITU treaty’s preamble “makes clear” that it’s the sovereign right of each country to regulate its telecommunications, he said.