The FCC takes a leadership role in combating orbital debris
by Ian Christensen, Brian Weeden, and Josh Wolny
|We believe that the proposed new requirements put the FCC in a forward-leaning position relative to other government regulators on taking meaningful steps to ensure the long-term sustainability of space activities.|
The second major change made in the proposed FCC rules is a requirement for all FCC licensees to indemnify the US government against any costs associated with a claim that may arise under the liability provisions in the space treaty system. This requirement poses an additional cost to operators, likely in the form of buying additional insurance to cover the indemnification, which some operators may not be able to afford. This provision will make the United States one of only a few jurisdictions to require either indemnification (at any financial level) or on-orbit insurance, leading some to suggest that companies might move to other jurisdictions. However, the commercial importance of US market access likely limits such forum shopping. The FCC also recognized that in other areas of commercial space regulation, such as launch, Congress has required the US government limit the amount of damages companies have to indemnify and may choose to do so here as well.
There are at least two dozen additional smaller changes made by the FCC in the new rule that mainly increase certification, reporting, or transparency requirements. License applicants are required to disclose plans to release any deployment devices and also what space situational awareness (SSA) data they plan to share with US government agencies, other satellite operators, or the public. They are required to have a unique telemetry marker for each satellite and disclose their plan for how to identify and contact their spacecraft after deployment from the launch vehicle. Licensees are also required to certify that, after receipt of a close approach warning, they will take all steps necessary to assess and mitigate the risk of a collision.
The new orbital debris mitigation requirements in this updated FCC rule will be widely applied. All but one of the new requirements will be applied only to new license applications from US companies as well as foreign companies seeking market access in the United States. However, the requirement for maneuverability above 400 kilometers will be applied retroactively to existing licenses, beginning with satellites that are launched after April 23, 2022.
Overall, the new rules established by the FCC are in line with what many scientists, technical experts, and industry representatives have been calling for to tackle the problem of orbital debris. The Satellite Industry Association, for example, has called for improvements “upon minimum orbital debris mitigation standards for disposal or reentry of NGSO satellites.” The new rules are also conspicuously more rigorous than the updated US Government Orbital Debris Mitigation Standard Practices (ODMSP) released by the Trump Administration in December 2019 after more than a year of interagency debate. The updated ODMSP were criticized by some, including us, for being too small of a step forward given the massive changes in the space domain (see “The United States is losing its leadership role in the fight against orbital debris”, The Space Review, February 24, 2020.)
The new FCC rules are generally compatible with existing industry-developed standards and best practices, which is what many outside observers (including ourselves) have consistently called for. For example, the new FCC rules closely track the “Best Practices for the Sustainability of Space Operations” document released by the Space Safety Coalition (SSC) in September 2019. The SSC best practices, which as of this writing have more than 40 endorsing organizations, mostly satellite operators, call for satellites above 400 kilometers to be capable of conducting “active collision avoidance”, improved trackability of satellites, increased information sharing with space situational awareness (SSA) providers, and improved coordination of collision avoidance maneuvers between operators. In some places the SSC goes further than the FCC, in particular in calling for de-orbit within five years of end-or-life for certain mission types, but to a large extent the FCC order adopts a performance-based approach that is compatible with the SSC’s recommended best practices.
|Overall, the new rules established by the FCC are in line with what many scientists, technical experts, and industry representatives have been calling for to tackle the problem of orbital debris.|
But not all of the space industry approves of the proposed rules. In the comments made during the NPRM process, several of the large satellite operators and defense contractors opposed many of the proposals, and virtually every company opposed the indemnification requirement. One company, Boeing, submitted a late filing that opposed nearly every change. In their final report and order, the FCC goes through all of the industry comments and explains why it chose to adopt some and disregard others. Since the report and order has been published, the major satellite companies have met with FCC commissioners to argue against many of the new rules. Satellite operators have also argued that the FCC order would often rely on “case-by-case” evaluation and sets out new requirements “without establishing transparent or objective thresholds regarding the level of compliance that would be sufficient to warrant the grant of a license.” While the proposed process may create some uncertainty and inefficiency in the licensing process, it also creates an opportunity for regulatory practice to be informed by evolving industry best practices and standards and avoids top-down imposition of proscriptive regulatory requirements.
One area where the new rules may have real world negative impact is on academic and scientific operators. Every US-licensed satellite that uses radiofrequency spectrum, from large communications satellites that generate hundreds of millions in annual revenue to 10-centimeter cubesats put up by universities to conduct science, will be required to follow the same set of rules. The latter group have less resources to comply and are more likely to be impacted by these new requirements. However, others in the amateur satellite community agree with the overall purpose of the new requirements but ask for an extension of the grandfathering period.
While the new FCC orbital debris mitigation requirements are largely a positive step for space sustainability, there are still some unknowns that need to be worked out. The biggest area is how the FCC will coordinate these new rules with the other US federal agencies who also include orbital debris mitigation as part of their licensing requirements. The Federal Aviation Administration (FAA) within the Department of Transportation (DOT) issues licenses for commercial space launches and re-entries, and the National Oceanographic and Atmospheric Administration (NOAA) within the Department of Commerce (DOC) issues licenses for commercial remote sensing and imagery of the Earth from space. Neither the FAA nor NOAA orbital debris mitigation requirements are as robust as the new FCC rule, and it’s unclear when either agency plans to update its own orbital debris mitigation requirements.
It’s also unclear how the new FCC requirements fit into the overall plan for developing a national space traffic management (STM) regime. In June 2018, the Trump Administration released Space Policy Directive 3 on STM, which directed DOC to take the lead on oversight of commercial space activities and developing new orbital debris mitigation requirements. But Congress has not yet acted to give DOC the new authorities and budget to do so, leaving the existing regulatory gaps and division of authority among the FCC, FAA, and NOAA in place. The lack of Congressional action has also left all collection and distribution of the underlying SSA data in the hands of the US military. That SSA data is necessary to understand the orbital environment and whether companies are complying with behavioral licensing requirements, tasks that the existing military system is not optimized to handle. The new FCC rule doesn’t address any of this, as it is outside their jurisdiction, so there is still a need for overarching reform of how the US government approaches oversight of commercial space activities.
|The situation is still far from ideal. We would prefer a situation similar to what is proposed in SPD-3, where a single federal agency has the authority to lead a whole-of-government effort.|
Instead of waiting to address what it clearly sees as an immediate problem, the FCC has moved ahead with enhancing its orbital debris mitigation rules despite grumbling from the White House and other agencies. This is possible because, while DOT and DOC are part of the executive branch and report directly to the White House, the FCC is an independent agency and can act of its own accord within the authority given it by Congress. In this situation, we feel this independence is good as it has allowed the FCC to take action and put the United States in a leadership role on mitigating the creation of additional orbital debris. Moreover, the FCC has the authority and reach, mainly through the market access controls, to implement these new rules very broadly across nearly all commercial satellite operators. For its part, industry must be willing to navigate tough choices between avoiding near-term business costs and the necessary commitments to sustainable operating practices that protect the long-term economic returns from space activities.
That said, the situation is still far from ideal. We would prefer a situation similar to what is proposed in SPD-3, where a single federal agency has the authority to lead a whole-of-government effort for holistic space environmental management that is coupled to improved civil SSA data and analysis. But until Congress and the White House can get on the same page to make that happen, we believe the FCC taking independent action is better than no action at all, given that many of these large constellations and small satellites are being deployed right now. Muddling through how best to switch the tracks is better than standing still arguing over the perfect solution after the train has left the station.
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