The FCC’s authority in regulating orbital debris
by Leighton Brown and Paul Stimers
|Though the regulation of space debris does not directly relate to the FCC’s core jurisdictional authority over radio communications, the agency concluded in 2004 that the Communications Act granted it sufficient authority to adopt orbital debris mitigation requirements.|
Notably, DISH received an initial license for, and subsequently launched, its EchoStar-7 satellite in early 2002, several months before the FCC first proposed to require applicants for satellite licenses to disclose their debris mitigation plans as part of the technical information submitted with their applications and more than two years before the FCC ultimately adopted those rules. In 2010, however, DISH filed a license modification application, requesting authority to operate the EchoStar-7 satellite at 118.8 degrees West longitude, rather than at 119 degrees West as authorized by DISH’s existing license. In its application, DISH argued that its proposed minor modification did not require the submission of an orbital debris mitigation plan. In addition to noting that the FCC first adopted its space debris rules more than two years after the launch of the EchoStar-7 satellite, DISH stressed that its proposed “slight change in orbital location [would] not change the overall orbital debris risk environment.” As a result, there was “nothing new for the Commission to evaluate,” so requiring the submission of an orbital debris mitigation plan “would not serve the purpose of the original rule.”
Nevertheless, either on its own motion or in response to a petition to deny DISH’s modification application based in part on DISH’s failure to submit an orbital debris mitigation plan, the FCC informally advised DISH that it should submit a mitigation plan “in order to facilitate processing of the application.”
Imposing debris mitigation obligations on licensees with respect to satellites launched prior to the adoption of the space debris rules was not a novel approach for the FCC, however. In the 2004 Order adopting those rules, the FCC noted several instances when it previously had required applicants seeking to modify existing satellite licenses to submit debris mitigation plans, the terms of which were then made binding via conditions attached to the modified licenses granted by the FCC.
Likewise, at the FCC’s urging, DISH relented and submitted a debris mitigation plan, and the FCC subsequently granted DISH’s modification application. In its mitigation plan, DISH committed to maneuvering the EchoStar-7 satellite to a disposal orbit at least 300 kilometers above its operational geostationary orbit. In subsequent filings with the FCC, DISH estimated that, based on the remaining fuel and projected operational parameters, the satellite’s end-of-mission deorbit maneuvers would take place in May 2022.
In February 2022, however, DISH discovered that its attempts to maneuver the EchoStar-7 satellite were not producing the expected changes to the satellite’s trajectory. A subsequent investigation determined that the satellite already was low on propellant, which would require deorbiting in the near term and prevent DISH from complying with its end-of-life disposal plan. DISH immediately alerted the FCC to its findings and, in May 2022, notified the FCC that the EchoStar-7 satellite had completed end-of-life deorbit maneuvers and been placed in a disposal orbit only 122 kilometers above its geostationary arc, leading the FCC to open the investigation that resulted in the Consent Decree.
Though the regulation of space debris does not directly relate to the FCC’s core jurisdictional authority over radio communications, the agency concluded in 2004 that the Communications Act granted it sufficient authority to adopt orbital debris mitigation requirements. The FCC primarily relied on the provision of the Communications Act instructing the FCC to license radio communications only upon a finding that the “public convenience, interest, or necessity will be served thereby,” concluding that orbital debris and related mitigation issues are relevant in determining whether the public interest would be served by authorization of a given satellite or by any particular practice or operating procedure of such satellite systems.
Further, because orbital debris potentially impairs the ability of other satellite systems to utilize spectrum to the full extent authorized by their licenses, the FCC found that its mitigation rules would advance the Act’s requirement that the FCC encourage “the larger and more effective use of radio in the public interest.” The FCC also concluded that, to the extent satellites are controlled through radiocommunications links, there is a direct connection between the radiocommunications functions that the FCC is charged with licensing under the Act and the physical operations of the spacecraft.
|Although the FCC is an independent agency insulated from the rest of the administration, Congress can limit its authority. A recent draft commercial space bill in the House of Representatives fired a warning shot.|
The FCC reasserted its authority in this respect when it updated the orbital debris mitigation rules in 2020 and again in 2022. Among other things: In 2020, the FCC required satellite applicants to be more specific in their debris mitigation plans and, in 2022, the FCC required satellites ending their mission in or passing through the low Earth orbit region to deorbit as soon as practicable and no more than five years following mission completion. Previously, there had been only a 25-year “guideline” for deorbiting satellites post-mission.
Though a court might not agree with the FCC’s broad interpretation of its own authority, the agency largely could avoid such scrutiny through license conditions agreed to by individual applicants seeking to have licenses granted as expeditiously as possible, as the FCC did with DISH in 2010. Companies that depend on FCC licenses also generally prefer to negotiate the terms of a Consent Decree and pay a modest civil penalty, rather than risk a protracted dispute with the FCC that potentially could result in a finding that they are unfit to hold any FCC licenses. And, as part of that process, these licensees will forgo the right to challenge the FCC’s jurisdictional authority, as DISH did in its Consent Decree when it agreed that the FCC “has jurisdiction over it and the matters contained in the Consent Decree” and waived “any and all rights it may have to seek administrative or judicial reconsideration, review, appeal or stay, or to otherwise challenge or contest the validity of the Consent Decree.”
Although the FCC’s orbital debris mitigation rules have been in effect for nearly two decades and select satellite licensees have been subject to similar requirements for even longer, DISH’s recent Consent Decree marked the FCC’s first enforcement action relating to a violation of those requirements. But that action may not be an outlier for long. In announcing the DISH Consent Decree, the chief of the FCC’s Enforcement Bureau, Loyaan A. Egal, emphasized that as “satellite operations become more prevalent and the space economy accelerates,” the FCC “must be certain that operators comply with their commitments.” Egal then described the Consent Decree with DISH as “making very clear the FCC has strong enforcement authority and capability to enforce its vitally important space debris rules.”
Congress and the Biden Administration are considering which agencies should be responsible for authorizing and regulating commercial activity in space. The US Department of Commerce, Federal Aviation Administration, and other agencies currently have roles alongside the FCC—and each is vying for greater responsibility. Although the FCC is an independent agency insulated from the rest of the administration, Congress can limit its authority. A recent draft commercial space bill in the House of Representatives fired a warning shot. As the policy discussion continues, satellite operators and other stakeholders should consider how best to shape the regulatory roles played by the FCC and other agencies in space. In the meantime, expect the FCC to continue its enforcement efforts.
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