The debate about who should regulate new commercial space activities
by Jeff Foust
|“I think the FCC, for their part, has pushed the boundaries of their authorities pretty aggressively,” said DalBello.
On September 29, the Federal Communications Commission voted unanimously to adopt a draft order earlier this month to set new requirements for disposing of satellites at the end of the missions. The FCC order requires satellites that end their lives in orbits at altitudes of 2,000 kilometers or less to deorbit their satellites within five years. It replaces guidelines that called for deorbiting satellites within 25 years after their mission ends.
“Twenty-five years is a long time. There is no reason to wait that long anymore, especially in low Earth orbit,” said FCC chairwoman Jessica Rosenworcel during brief comments at the FCC meeting.
There was no debate at the meeting against the proposed rule, intended to speed up the disposal of satellites in an era when increasing numbers are being launched for remote sensing and communications constellations. “With this order, we do take that practical step of reducing the demise times in LEO to no more than five years, a timeframe that is readily achievable,” said another commissioner, Geoffrey Starks. “Compliance will be the new rule here to bend the curve of debris proliferation.”
There was little debate about changing that deadline for post-mission disposal from 25 to 5 years. Most in the industry agreed that the 25-year guideline, crafted some two decades ago, was out of date given the rapidly growing population of satellites and debris in LEO. In comments to the FCC, companies primarily asked for exceptions for satellites that suffer anomalies or other malfunctions beyond their control. None expressed opposition to the proposed order.
While there was no opposition to changing the deorbit lifetime to five years, there was debate about whether the FCC is the right agency to do it. Two days before the FCC vote, the bipartisan leadership of the House Science Committee asked the commission to delay the vote, questioning its authority to regulate deorbit lifetimes.
In a letter, members said they supported efforts for a “safe, sustainable space environment” and did not object to the five-year post-mission disposal timeline itself. “However, we are concerned that the Commission’s proposal to promulgate rules on this matter could create uncertainty and potentially conflicting guidance.”
The members questioned whether the FCC had the authority under existing law to craft such regulations, an issue they raised two years earlier when the FCC was considering a similar change. The FCC then decided to delay consideration of the change to get more feedback, and not necessarily because of those legal concerns.
House members also worried about confusion that the FCC’s decision would make. A separate interagency effort, coordinated by the White House’s Office of Science and Technology Policy (OSTP), is working on related issues as part of an Orbital Debris Implementation Plan issued in July. One topic of that plan was to revisit the 25-year deorbit rule that is part of current government guidelines.
|“We have, through the option of extending our orbital debris rules to any who seek US market access, a regulatory hook for creating a default rulebook for commercial operators globally,” said Simington.
Ezinne Uzo-Okoro, assistant director for space policy at OSTP, downplayed any conflict between that implementation plan and the FCC’s action. “The FCC is part of, and continues to be part of, the orbital debris interagency working group,” she said the day of the FCC vote at the Advanced Maui Optical and Space Surveillance Technologies (AMOS) Conference in Hawaii. “It’s all working in tandem. It’s not a separate effort.”’
But another government official, speaking at the same conference the next day, offered a more critical assessment. “I think the FCC, for their part, has pushed the boundaries of their authorities pretty aggressively,” said Richard DalBello, director of the Office of Space Commerce, which is working to take over civil space traffic management responsibilities from the Defense Department as part of Space Policy Directive 3.
“Although I certainly congratulate them on the depth of their intellectual work,” he said of the FCC, “a lot of the things that they articulated are probably, arguably, outside their job jar.”
The FCC stepped up years ago with first applying the 25-year guideline to licenses, and now with the new five-year rule, in part because no one else in the federal government was interested, or felt they had the authority, to implement it. The new rule, which takes effect in two years, will apply not just to companies that apply for FCC licenses but also to satellites licensed in other nations that seek “market access,” or permission from the FCC to provide services in the United States, giving it a reach that goes beyond many government regulations.
“We have, through the option of extending our orbital debris rules to any who seek US market access, a regulatory hook for creating a default rulebook for commercial operators globally,” said Nathan Simington, an FCC commissioner. “That’s a powerful, even irresistible, incentive.”
The FCC’s orbital debris regulation comes amid a broader discussion about who should regulate new commercial space activities. The FCC, for example, licenses communications, while the Office of Space Commerce, currently within NOAA, licenses commercial remote sensing satellites. The FAA licenses commercial launches and reentries.
A long-running debate, though, has revolved among new space applications that don’t fit neatly within those existing markets: satellite servicing, commercial space stations, lunar landers, and more. The United States, to comply with Article VI of the Outer Space Treaty, has to provide “authorization and continuing supervision” of space activities carried out by companies and organizations.
There have been plenty of proposals for who should be responsible for “mission authorization” of those activities, typically focusing on the FAA or the Office of Space Commerce. At the Beyond Earth Symposium in Washington October 13, George Nield, former associate administrator for commercial space transportation at the FAA, proposed it should go to the FAA’s parent agency, the Department of Transportation.
“My recommendation is that we take this opportunity to recognize spaceflight as a mode of transportation, just like highways, railways, maritime, aviation, and pipelines, and create a Bureau of Commercial Space Transportation under the U.S. Department of Transportation,” he said. “That could be a one-stop shop for regulating space.”
|“I look at that and take that as a sign that this is my opportunity to tell the FCC that they are not a mission authorization body,” said Cummings of a recent FCC notice.
Others advocate for Commerce. “You have a department that is used to working with industry,” said Joel Graham, partner at Meeks, Butera, & Israel and a former staff member on the Senate Commerce Committee, during a panel at the American Astronautical Society’s Wernher von Braun Memorial Symposium last week. “I think Commerce is probably the most agile and makes the most sense for placing these highly dynamic activities.”
The Biden Administration, through the National Space Council, is working on its own proposals for mission authorization. At the September 9 meeting of the council, Vice President Kamala Harris directed agencies to provide proposals on mission authorization within 180 days (see “A substantive National Space Council meeting”, The Space Review, September 12, 2022).
As part of that effort, the council is planning two public “listening sessions” on November 14 and 21. The first will seek feedback on novel space capabilities and the second will be devoted to approaches for the authorization and supervision required by the Outer Space Treaty.
That effort got going in the last several months “because the vice president became very aware of some of the issues” after meeting with several companies that are doing novel commercial activities, said Diane Howard, director of commercial space policy at the National Space Council, during a panel discussion at the Global Satellite Servicing Forum October 19. That kicked off a discussion at the council meeting in September and the announcement of a 180-day timeframe for mission authorization.
She said that it was likely the administration would move quickly on this. While Harris’s comments at the council meeting suggested a 180-day deadline for offering proposals, Howard said she expected more than that by March. “We’ll have something from the executive branch by March 7,” she said, saying it would be “more formal” than a recommendation. “We’re on the clock.”
The satellite servicing field—more broadly, in-space servicing, assembly, and manufacturing, or ISAM—has also been watching an FCC proceeding opened this summer on how it might regulate ISAM missions. The “notice of inquiry” sought input on roles the FCC might play in licensing spectrum needed by ISAM missions, orbital debris regulations, and even roles it might play for ISAM missions beyond Earth orbit.
At the Global Satellite Servicing Forum, some saw a need for the FCC to address specific spectrum-related issues for ISAM. “We don’t have an allocation today for spectrum that ISAM services that can use,” said Joe Anderson, vice president of business development and operations at SpaceLogistics, the Northrop Grumman subsidiary that operates two Mission Extension Vehicles currently attached to Intelsat satellites in GEO.
For those two MEV missions, SpaceLogistics used Intelsat’s spectrum allocations for its satellites. “But going forward, as we start doing more servicing, we’re going to be maneuvering around much more frequently,” he said. “You need more assurance about access to spectrum.”
|“We need to have predictability, we need to have clarity and we need to have certainty in terms of the regulatory structure,” said Gold.
Some, though, are worried the FCC, through the notice, might be seeking to take a greater role in overseeing ISAM missions. “They specifically ask what do they have authority for, and I know some people can look at that and take that as a sign that the FCC may try to overreach,” said Laura Cummings, regulatory affairs council at Astroscale US, a company working on satellite servicing systems. “I look at that and take that as a sign that this is my opportunity to tell the FCC that they are not a mission authorization body.”
Any solution that emerges from the mission authorization effort will likely need to be written into law. “It will end up taking an act of Congress,” she said.
“Get something out there, get something on paper, keep it moving forward, and then maybe we can talk about legislation a little bit further down the road,” said William Kowalski, chief operating officer of Atomos Space, on the same panel.
Graham, the former Senate staffer, also felt Congress will need to resolve the mission authorization issue. “That is something that will require Congress to speak to,” he said. “There’s some big questions to answer there about how we regulate and how we authorize these missions.”
Even some in the FCC have concerns they may be pushing the limits of their authority. “I’ve long expressed a little bit of skepticism about the FCC going alone here,” said commissioner Brendan Carr. “We need to make sure we’re leaning on the expertise of other agencies that do, in fact, have a cadre of rocket scientists to help inform this. I hope that we do that here.”
Companies, meanwhile, are looking for some certainty as they push ahead with new commercial space ventures. “We need to have predictability, we need to have clarity and we need to have certainty in terms of the regulatory structure,” said Mike Gold, executive vice president for civil space and external affairs at Redwire, at the Beyond Earth Symposium, warning of the challenges companies face today dealing with “absolute alphabet soup of agencies.”
“It’s vital that we consolidate and simplify not only because it makes it easier on the private sector,” he said, “it will also result in better safety and better innovation.”
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