Regulating Outer Space: Of Gaps, Overlaps, and Stovepipes

Dunstan, James

Introduction

Outer Space is hot. Not in terms of the thermal environment (where space can be either very hot or very cold, depending on your orientation to the Sun), but in terms of the regulatory environment. As the space launch cadence has increased dramatically in the last few years, especially for commercial space launches,¹ there is new interest by some in regulating all that activity above our heads.

This paper will look at the U.S. regulatory structure, admittedly promulgated several generations ago,² who regulates outer space, and under what authority. Are there gaps (vacuums) in the regulatory structure, and do they actually need to be filled? There are plenty of calls for regulating activities in space, especially new and innovative activities. But little comprehensive analysis exists exploring how proposed regulatory changes would interact with the existing order, and what, if any “domino effects” and interagency clashes could result from such new regulations.

The regulatory thicket is dense, and the open questions are extensive:

What impact would regulations have on the nascent market for in-space servicing, assembly, and manufacturing (ISAM)?
Are there “stovepipes” in the regulatory system that keep the U.S. from taking an “all-of-government” approach to space regulation?
Given that outer space is inherently international, what impact does the U.S. regulatory regime have on where companies and individuals choose to locate (or at least become regulated entities)?
Is the current international treaty regime sufficient to ensure a peaceful and prosperous future for space activities?
Would attempts to change or add treaties lead to a better legal environment for commercial space, or would it create a stifling regulatory environment in which the costs of the regulatory overburden strips away any ability to profit from space resources and the space environment?
Given the interest of some governments to elevate their presence (and perhaps dominance) in space, what concerns should commercial companies have with the future safety of their operations in space?
Are we inevitably headed toward a war in space, or can humans contain their earthly disputes to the surface and airspace of the planet and leave outer space to flourish and as an environment for freedom and “permissionless innovation”?³

These are vital questions that merit serious consideration, not knee-jerk reactions to a fear that space is getting out of control.

These questions merit thorough analysis, especially following West Virginia v. EPA,⁴ in which the U.S. Supreme Court made clear that agencies are not free to regulate wherever they see a vacuum, or where regulating might further a political agenda. Rather, the power of agency regulation comes only from Congress, and any regulation must have firm roots in properly delegated authority, not some amorphous ancillary jurisdiction or “public interest” standard. One excellent measure of whether Congress authorized agencies to regulation is whether they also provided enforcement authority to the agencies. After all, what good are regulations if they have no teeth, or if an agency must rely on someone else to enforce their rules?

This paper thus reviews the enabling statutes of the modern U.S. agencies that one would think might have regulatory authority over private sector enterprises seeking to do business in outer space. Two questions are asked:

Did Congress give the agency rulemaking authority over outer space activities, and was that authority constrained to rules related to internal operations of that agency only?
Did Congress give the agency enforcement authority over the substance of the rules regulating outer space activities?

The results are surprising. Agencies that have historically regulated the activities of commercial businesses most (the FCC and FAA) may have the least regulatory authority over outer space activities, and an agency that historically has not regulated commercial activities (NASA) may currently possess the widest congressional mandate to regulate space operations. Whether NASA possesses the expertise to regulate private businesses is another matter, given its historical mandate to explore outer space and develop the technologies necessary to do so.

Against the current regulatory backdrop, what is the path forward for creating a more rational regulatory system? While the specific details of a new regulatory act are beyond its scope, this paper is intended to provide the necessary background to begin that conversation. What is clear is that after West Virginia v. EPA, reform efforts must come from Congress with clear statutory authority provided to the relevant agencies including guardrails to keep agencies from promulgating inconsistent or redundant regulations. There may also be a vital role for private or quasi-private standards-setting organizations to develop best practices, crafted by experts who are in a better position to find solutions to problems.

As will become clear, the specific issues that need to be addressed in this legislation are:

What should the Federal Aviation Administration’s (FAA) regulatory responsibilities be (launch, reentry, payloads, other operations)?
What is the overall role of the Department of Commerce?
- Should Commerce or the FAA be in charge of space traffic management (STM)?
- If Commerce handles STM, how can outer space and national air space be integrated?
What is the role of the Federal Communications Commission (FCC) in space? Is it limited to allocating and licensing frequencies, or does its “public interest” standard imply more regulatory authority?
What agency should promulgate rules related to orbital debris, and should this power be exclusive (i.e., other federal agencies should defer to the lead agency)?
In instances where interagency coordination is necessary, what measures should be instituted to force transparency (with due regard to national security interests), ensure timely resolution, and remove “black box” vetoes without accountability?
What agency, if any, should “authorize” and “supervise” space activities that fall outside the traditional norms of telecommunications, launch, and/or remote sensing? Is there a role for “permissionless innovation” in outer space?

This paper will explain why these questions are important when considering any comprehensive regulatory reform for outer space.

I. The State of Space Activity

We are in a new space race. Not one that pits government against government in a race with a specific goal, such as placing the first humans on the Moon,⁵ but rather a race to establish a cis-lunar economy⁶ and better reap the scientific and economic benefits of space resources.⁷ The competitors, especially among democracies, predominantly come from the commercial sector. And the activities they wish to conduct in space are far different from what governments have traditionally regulated. Rather than a space economy fueled almost entirely by telecommunications and remote sensing of Earth (i.e., businesses that merely use space to transport information), the new space race features activities that use the resources of space (microgravity, abundant solar energy, mineral resources) to create value in space itself. These innovative activities, in turn, will fuel an entire space ecosystem where satellites will need to be serviced on-orbit, and components for large space systems will be manufactured and assembled.⁸ This is the space economy of science fiction,⁹ or of science visionaries such as Gerard K. O’Neill.¹⁰

That is not to say that governments don’t play a key role. They do. Indeed, outer space is inherently international, both physically and legally, and the treaty regime places the ultimate responsibility for space activities on nations, not individuals or corporations.¹¹ Under Article VI of the 1967 Outer Space Treaty, for instance, governments must both authorize and supervise the activities of their nationals.¹² Although there is significant debate about what Article VI means,¹³ and whether or not it is self-executing,¹⁴ it is clear that nations cannot simply abdicate responsibility for their nationals’ activities in space, as they risk international liability under both the Outer Space Treaty and the Liability Convention.¹⁵ Some regulatory system is required under international law.

What makes the United States different from virtually every other spacefaring nation is that, notwithstanding the fact that we have the most commercial space enterprises and lead the world in so many facets of developing a space economy, there is no uniform U.S. space law (no “U.S. Space Act”), and no one agency (or even a group of agencies) clearly can wield regulatory authority over commercial space activities. As one space scholar notes:

At the same time, the United States turns out to present a rather unusual picture from the perspective of domestic implementation of international obligations under the space treaties and domestically specifying the agencies exercising jurisdiction for the purpose. It does not have a single national framework space act from which all further detailed regulations follow (which is essentially what all other countries with dedicated national space laws have availed themselves of), but a set of separate, to some extent even disparate national acts handling different aspects and elements. While historically understandable, and so far not having raised major legal problems, this is rapidly changing now under the pressure of such new developments as sketched above.¹⁶

II. Why the Regulatory Environment Is Critical to Winning the New Space Race

Rather than being faced with a race that can be won through engineering excellence and blank check government spending,¹⁷ this race if far more nuanced and requires far different tools to win. Interestingly, and contrary to many of the calls for heavy regulation (if not the total prohibition of commercial activity in space), the United States, and specifically its commercial bedrocks in the American free-market economic system, is far better equipped to win this race than any “top-down” authoritative economy.¹⁸

The United States was successful in putting humans on the Moon with the Apollo program, and “won” that race. What came shortly thereafter, however, was a total collapse of our space program, which lacked both leadership and broad political will to continue with a centralized, government-owned and run space economy.

[In February 1969] President Nixon asked Vice President Spiro Agnew to chair a Space Task Group (STG) created to provide a definitive recommendation regarding the course the space program should take during the post-Apollo period. . . . [Vice President Spiro] Agnew was supportive, stating that NASA needed an “Apollo for the seventies.” [But] “Nixon was concerned about scientific-technological programs that might stress engineering over science, competition over cooperation, civilian over military, and adventure over applications . . . [and his] emphasis on frugality in government spending prompted caution on his part in endorsing any effort in space.” Public sentiment toward the space program had also begun to shift, with increasing concerns that the government had misplaced priorities. A Gallup Poll conducted in July 1969, at the time of the Apollo 11 mission, indicated that only 39% of Americans were in favor of U.S. government spending to send Americans to Mars, while 53% were opposed. Thus, [NASA Administrator] Paine and Agnew were pushing for a large new Apollo-like commitment despite the fact that there appeared to be little or no support for such an undertaking within the White House or the mass public.¹⁹

This longing for a new Apollo program has permeated NASA and several administrations since, with each effort resulting in failure after failure to recapture the public’s infatuation with space or to spark Congress’s willingness to fund large government-controlled space exploration projects.²⁰

Without full public backing or full congressional appropriations for new large programs, NASA attempted to enter the waters of “commercial space” by proposing the space shuttle, which supposedly would serve the needs of anyone wishing to get into space with a reusable rocket that could fly often, and cheaply. That, of course, never materialized, as the shuttle turned out to be only partially reusable and cost more than a billion dollars a mission to fly.²¹ That should have come as no surprise, given that NASA was not created to further commercial space development, and its attempts to dabble in commercial space ventures has been spotty, at best.²²

The government’s approach to commercial space, as poor as it has been, hasn’t stopped entrepreneurs from finding ways to build an Earth-facing space economy, first through providing communications services from orbit, then commercial remote sensing, and more recently, beginning to undertake more innovative activities, including in-space servicing, assembly, and manufacturing (ISAM).²³ The reduction of cost engendered by SpaceX and other “NewSpace” entrants has ushered in this new space race, with commercial entities—not governments—emerging as the key players.²⁴

This is why analyzing the current state of the U.S. space regulatory system is so important. Governments that provide a stable and frictionless regulatory system will write the rules for this new space race. In “Why Nations Fail: The Origins of Power, Prosperity, and Poverty,” D. Acemoglu and J. Robinson analyze many historical societies, their governments, and why even bordering cities can have radically different qualities of life based on how their respective governments operate.

The reason that Nogales, Arizona, is much richer than Nogales, Sonora, is simple; it is because of the very different institutions on the two sides of the border, which create very different incentives for the inhabitants of Nogales, Arizona, versus Nogales, Sonora. The United States is also far richer today than either Mexico or Peru because of the way its institutions, both economic and political, shape the incentives of businesses, individuals, and politicians. Each society functions with a set of economic and political rules created and enforced by the state and the citizens collectively. Economic institutions shape economic incentives: the incentives to become educated, to save and invest, to innovate and adopt new technologies, and so on. It is the political process that determines what economic institutions people live under, and it is the political institutions that determine how the process works.²⁵

This analogy scales well in analyzing the outer space economy, given that all countries of the world border space (it is, after all, a mere 100 km or so above their heads), and the domestic regulatory policies of one country can have an outsized impact on the business activities of every other country seeking access to the space economy.

At the same time that we’re seeing a rush to space by commercial companies in the United States under this patchwork of regulations, we’re also seeing some of our adversaries, especially China, devote serious resources to staking a claim on being the dominant power in outer space.

China views space as critical to its future security and economic interests due to its vast strategic and economic potential. Moreover, Beijing has specific plans not merely to explore space, but to industrially dominate the space within the moon’s orbit of Earth. China has invested significant resources in exploring the national security and economic value of this area, including its potential for space-based manufacturing, resource extraction, and power generation, although experts differ on the feasibility of some of these activities.²⁶

With so much at stake economically and from a national security standpoint, if we as a country don’t have a viable and inviting regulatory system, America will see companies flee “across the border” for jurisdictions that are more conducive to the commercial space sector.²⁷ Or worse, America might see a foreign power, one that does not share our ideals, emerge as the dominant force in space—able to exercise substantial control over others wishing to explore and develop the cis-lunar region of space.

To be sure, a regulatory system conducive to private space commerce is only part of the recipe necessary for winning the next space race. The U.S. government will continue to be a major player in space, from NASA’s role to explore space and develop technologies, and the Department of Defense’s role in defending U.S. national security interests. How government agencies spend money is also critical. Generations of “cost-plus” contracting methods have resulted in huge cost overruns and program cancelations, hampering both NASA and DoD. Only recently, both NASA and DoD have taken advantage of their “other transaction authority” (OTA) to enter into contracts that both incentivize private businesses to invest their own funds and require the government to accepts a heightened level of risk in exchange for less costly contracts. As discussed below, these contracting methods, coupled with using commercial off-the-shelf (COTS) systems, have revolutionized space government contracting. But even innovative contracting methods can’t fully replace the free-market, where entrepreneurs risk everything to make their space dreams come true.

III. The International Regulatory Framework

Although the bulk of this paper centers on U.S. regulatory policy, it is nonetheless important to understand key components of international space law. As mentioned above, the activities of humans in space are governed by four key international treaties:

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, (“Outer Space Treaty” or “OST”);²⁸
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (“Rescue and Return Agreement”);²⁹
Convention on International Liability for Damage Caused by Space Objects (“Liability Convention”);³⁰
Convention on Registration of Objects Launched into Outer Space (“Registration Convention”).³¹

A fifth treaty, the Moon Treaty,³² was adopted by the United Nations in 1979, but ratified by only a handful of nations, none of which had an independent space program with launch capabilities when the country ratified the treaty.³³ Whereas the first four treaties were largely aspirational in nature,³⁴ the Moon Treaty specifically called for the creation of an “international regime” for the “orderly and safe development of the natural resources of the moon,” and “an equitable sharing by all States Parties in the benefits derived from those resources.”³⁵

The Moon Treaty also departed from the concepts of the first four treaties that “[t]he exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”³⁶ Instead, the Moon Treaty declared that “[t]he moon and its natural resources are the common heritage of mankind.”³⁷ The switch from “province of all mankind”³⁸ to “common heritage of mankind,” was more than a change of language. It signified a significant change in perspective, and one which ultimately kept all the major spacefaring nations from ratifying the Moon Treaty.³⁹

While most would argue that the Moon Treaty and its “international regime” is a dead letter,⁴⁰ there are some that still cling to its concepts and argue that it is still good international law.⁴¹ This is critical, as many of the calls for regulating outer space, especially from those outside the United States, call for such regulations to emulate the concepts put forward in the Moon Treaty, whereby a single international organization would approve, govern, and extract monetary concessions from those making a profit from outer space activities. This also means that calls for new international space treaties will most likely fail to produce sufficient consensus to reach adoption, as so many non-spacefaring countries still desire such a restrictive regulatory regime.⁴²

IV. Calls for Regulation

With the increase in space activity has come an increased cadence of calls for more regulation from academics, scientists, and bureaucrats. Some propose reasonable approaches to regulation, some advocate for proscriptive rules (perhaps even a precautionary principle approach to outer space regulation),⁴³ while others call for an outright ban on market-driven commercial activity in space. These calls can be grouped into two major areas of alleged concerns: 1) The need to protect space from the evils of capitalism; 2) The need to fill vacuums in the regulatory system.

A. Calls to Protect Space from the Evils of Capitalism

These calls strive to stop commercial space development in its tracks. Some of these calls source from people and groups that one might expect, such as foreign governments who do not share a belief in (or are jealous of) individual freedoms and our free market system, or otherwise want to slow down everyone else while their domestic aerospace industry catches up.⁴⁴ For example, the Egyptian delegation to the United Nations presented a proposal, on June 2, 2021, to the UN’s Committee on the Peaceful Uses of Outer Space (COPUOS) calling for “a new era for human civilization.”⁴⁵ The document argues that the entire underpinning of what most would call Western democracy (and the “pursuit of happiness”) cannot be allowed to migrate to outer space.

The result of [the development of civilization on Earth] has shaped our collective governing culture to become a culture of conflict, resulting in many wars, struggles, and catastrophes that have plagued humanity. It becomes evident [] that our current human civilization with all its negative attributes cannot be the basis for a new human civilization in outer space. Therefore, we as humans are required to lay down the building blocks of a new human civilization in outer space, that takes in consideration all the above-mentioned resources and potentials, as well as the possible dangers and threats. We will call this the second human civilization or the human space civilization. Having also witnessed all the negative and destructive attributes of our current human civilization, it becomes our duty to not transfer these negative attributes to any new human civilization in space.⁴⁶

Similarly, others have called for either an outright ban on future commercial uses of outer space, or that such activity should be allowed only under a heavy regulatory environment that considers the needs of all nations and even the views of “indigenous peoples,”⁴⁷ as if exploring and exploiting the resources of outer space will somehow displace the rights of others.⁴⁸ This includes a claim that light pollution from satellites somehow infringes on some ancestral (or, apparently, God-given) rights that international law should recognize.⁴⁹ Invoking religion as the basis for slowing or stopping space development is remarkable, in that at least one author claims that the evils of outer space colonization itself are rooted in religion, and therefore must be abandoned.

[T]he ideology of space colonization and exploitation is largely Western, and Christian, as noted above. It appears to be some interpretation of Christian dominion, or dominionist, theology that drives colonization advocates to declare that humans are destined to fill the universe, that humans “must” colonize Mars, that outer space resources are there for the taking. The ideology of space exploration is in need of rejuvenation. The author advocates a vision of a human future in space in which humanity finds its way to a collective peaceful existence on Spaceship Earth, a way to work together to preserve life here and to look for life out there. Perhaps at some point in the distant future, humans might be ready—technologically and socially—to live together peacefully on other planets. But we are not there yet.⁵⁰

Others echo this belief, which itself was brandished as a protest to the Apollo program,⁵¹ that humans should not move out into the cosmos until we’ve somehow proven ourselves worthy by meeting the authors’ demands that we first clean up Earth.

On one side of the continuum, some people argue that humans have no business in space until and unless they prove they can manage the Earth responsibly. They believe that public opinion concerning colonies is driven by a largely uncritical acceptance of ideologies of conquest and domination, which should have no place in the debate. They also point to humanity’s abysmal environmental record on Earth and ask if we have the right to subject another world to our destructive presence.⁵²

To be clear, these calls for stopping “colonialism” in outer space are not really a call to protect indigenous peoples or their environments,⁵³ but rather an indictment of capitalism and Western civilization in general.⁵⁴ Some have gone so far as to argue that the colonization of outer space literally “means the destruction of Earth,”⁵⁵ while others have even argued that outer space, or at least the private exploration of space, is somehow racist.⁵⁶ That is not to say that there hasn’t been pushback on these arguments.⁵⁷ However, the danger of buying into the notion that colonizing space is the same as colonizing Earth (with its concomitant deprivation of indigenous peoples’ rights) is that it also implicitly argues Western civilization as a whole is somehow to blame for all the ills of human society, and its belief systems should not be allowed to migrate into space.⁵⁸

One would think that these anti-capitalist feelings would be limited to foreign governments or a certain segment of academics. Unfortunately, some of this thinking has filtered into our domestic agencies as well. NASA’s Planetary Science and Astrobiology Decadal Survey committee received what can only be called a manifesto from its Equity, Diversity and Inclusion Working Group (EDIWG) entitled “Ethical Exploration and the Role of Planetary Protection in Disrupting Colonial Practices.”⁵⁹ Its core thesis is that the exploration of the new world, the development of western civilization, and the establishment of democratic norms, is evil.

Violent colonial practices and structures—genocide, land appropriation, resource extraction, environmental devastation, and more—have governed exploration of Earth, and if not actively dismantled, will define the methodologies and mindset we carry forward into space exploration. It is critical that ethics and anticolonial practices are a central consideration of planetary protection. We must actively work to prevent capitalist extraction on other worlds, respect and preserve their environmental systems, and acknowledge the sovereignty and interconnectivity of all life.⁶⁰

Thus, the inherent danger in calls for more regulation of outer space activities is that those making the rules may come to the table with a clear mindset that space is no place for the entrepreneur, no place for those seeking to leverage their skills into profits, no place for the expansion of capitalism. Even facially reasonable efforts to regulate, therefore, must be viewed through a skeptical lens that there lurks an anti-capitalist movement that uses a heavy regulatory blanket to snuff out the future space economy.

Capitalism certainly has its problems, and we can debate the extent to which we should regulate various aspects of our economy, but the proof of the benefits of a free market approach to outer space are evident all around us. Confined to governmental programs and traditional government procurement models, space development stagnated for 50 years. As recently as just a decade ago, many aerospace engineers claimed that landing a first stage rocket back at its launch site was either impossible or impractical, yet SpaceX has demonstrated that its Falcon 9 first stages can be reused over a dozen times. It has only been in the past decade, in which American entrepreneurship has been allowed to flourish, that launch costs have come down, launch rates have gone up, and we’re now seeing the beginnings of this new space race.⁶¹

B. Calls to Fill the Perceived Gaps in U.S. Regulations

Calls for more regulation of space activities are not limited to those who seek to slow down or stop the economic development of outer space (at least by commercial entities). Nor does it source just from abroad. There are strong calls from within the U.S. government for increased regulation of space activities, especially those of the private sector. In many cases, there is a clear acknowledgement that the U.S. space regulatory system is broken, or at least so outdated that it can’t keep up with the pace of space progress. These calls come from the highest level of government, from Vice President Kamala Harris who is also chair of the National Space Council. She has called for an all-of-government assessment of the current outdated regulatory regime.⁶²

These sentiments have been echoed by the chair of the Federal Communications Commission (FCC), responsible for space spectrum allocation and licensing.⁶³ The FCC has opened a number of new proceedings to deal with the new space race, including a Notice of Inquiry on ISAM.⁶⁴ The Department of Commerce, which has been tasked by the White House to spearhead the future of space traffic management (STM),⁶⁵ although late to the game, is finally beginning to find a voice in the space regulatory debate.⁶⁶ Longtime Florida senator, Bill Nelson, now NASA Administrator, has even chimed in on the issue of regulating outer space, although Congress most likely has given NASA no regulatory authority beyond setting rules for NASA-owned systems and internal operations. When asked about whether space tourism should be regulated, Nelson had this exchange:

Q: But just to finish with this question of space tourism, what rules should there be? Is this a scenario that NASA should try to have some regulation? Is there a way that this can be made more accessible so that more people can experience this extraordinary adventure? How are you thinking about space tourism going forward?

MR. NELSON: All of the above. If the so-called space tourists are going to the International Space Station, then what I am insisting on, that they go through all the training, the medical exams, the psychological/psychiatric exams that any one of our astronauts would do because they are going to a space station with astronauts and cosmonauts that is doing genuine productive work in research. And I don’t want somebody getting up there and going crazy. So NASA is all over this and will require that. If they’re going on a venture on their own, then that’s a different matter.⁶⁷

NASA is also moving forward with gaining additional signatories on the Artemis Accords, a set of principles for the next generation of space exploration and development.⁶⁸ As of this writing, 26 nations have signed onto these principles.⁶⁹ I have previously criticized NASA for taking on the role of international regulation negotiator,⁷⁰ given that NASA has no current external regulatory role. Fortunately, the U.S. State Department, which oversees international negotiations of regulation, is stepping in to provide the necessary structure for the Artemis Accords.⁷¹

Other agencies with some jurisdiction over space activities have been relatively silent on the new push toward regulating innovative space activities. Transportation Secretary Pete Buttigieg has had little to say about outer space, notwithstanding the fact that all launch and reentry licenses for commercial vehicles are issued from the Federal Aviation Administration’s Office of Commercial Space Transportation (AST). Since his appointment, Buttigieg has said virtually nothing about the role of the FAA in outer space regulation,⁷² and the FAA remains without a Senate-confirmed administrator.⁷³

Capitol Hill has also shown a renewed interest in outer space, especially with the new Republican leadership in the House of Representatives, beginning in January 2023. Within a few weeks of taking power, the House held two oversight hearings: one on the threat of China to our technology base,⁷⁴ and another about the satellite industry and regulation by the FCC.⁷⁵ Both the Energy and Commerce Committee (with jurisdiction over the FCC), and the Science, Space, and Technology Committee (with more general jurisdiction over space),⁷⁶ are showing an interest in conducting far more oversight hearings related to outer space than did their predecessors in the 117th Congress (which actually never held an oversight hearing for the FCC, for instance). Both committees also are working on significant legislation relating to outer space regulation.⁷⁷ Whether any of these bills will survive in a divided Congress is in doubt, even though space has traditionally not been a particularly partisan issue.⁷⁸

With that background, the remainder of this article will discuss the overall U.S. regulatory system, the gaps and overlaps, and where we might see improvements to the U.S. regulatory system that don’t increase the regulatory overburden on commercial enterprises. While commercial operators cite the regulatory process as one of the key factors in closing their business plans,⁷⁹ they are also gravely concerned with the time it takes U.S. regulatory agencies to issue the requisite licenses for their activities and the overall cost of regulatory compliance.⁸⁰

V. The U.S. Regulatory Environment and Limits to Agency Rulemaking Authority

As noted above, there is no single U.S. Space Act—no comprehensive congressional mandate for how to regulate space activities. Instead, commercial space enterprises are faced with a gauntlet of agency rules with which they must comply. This perceived vacuum of regulatory turf has prompted a number of agencies to promulgate rules for space activities that may or may not be legal. Before we turn to each agency’s regulatory approach to space, we must first be cognizant of recent Supreme Court precedent that makes clear that executive brand agencies may not regulate in areas where Congress has not provided them explicit authority. In short, the days of an agency finding regulatory authority hidden in “mouseholes” are over.⁸¹ A short diversion into somewhat obscure concepts of administrative law is therefore warranted prior to addressing the specific regulatory authority of various agencies.

A. The Impact of West Virginia v. EPA—Modest Words Alone Do Not Create Regulatory Authority

Now, more than ever, courts are looking to find actual statutory authority for an agency’s action (especially rules adopted), when such actions are challenged. The Supreme Court made clear in West Virginia v. EPA that agencies are no longer free to find a vague provision in their governing statute and use it as a launching pad to regulate.⁸² After discussing previous decisions in which the Supreme Court had limited agency actions, Chief Justice Roberts continued:

All of these regulatory assertions had a colorable textual basis. And yet, in each case, given the various circumstances, “common sense as to the manner in which Congress [would have been] likely to delegate” such power to the agency at issue made it very unlikely that Congress had actually done so. Extraordinary grants of regulatory authority are rarely accomplished through “modest words,” “vague terms,” or “subtle device[s].” Nor does Congress typically use oblique or elliptical language to empower an agency to make a “radical or fundamental change” to a statutory scheme. Agencies have only those powers given to them by Congress, and “enabling legislation” is generally not an “open book to which the agency [may] add pages and change the plot line.” We presume that “Congress intends to make major policy decisions itself, not leave those decisions to agencies.”

Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims.⁸³

Although the most recent articulation on the limitation of the power of agencies, West Virginia v. EPA rests upon a long line of cases in which agencies have attempted to expand their statutory authority to promulgate new regulations that push the boundaries of their enabling statute. In striking down many of these actions, courts have invoked uncharacteristically (at least for most judges) catchy terms of phrase to make clear that these limitations on agency authority are not esoteric legal constructs, but strike to the heart of the separation of powers between the branches of government—fundamental administrative law. Examples of such colorful language include:

Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not . . . hide elephants in mouseholes.”⁸⁴
“The implausibility of Congress’s leaving a highly significant issue unaddressed (and thus ‘delegating’ its resolution to the administering agency) is assuredly one of the factors to be considered in determining whether there is ambiguity.”⁸⁵
“Great caution is warranted here, because the disputed [] regulations rest on no apparent statutory foundation and thus appear to be ancillary to nothing. Just as the Supreme Court refused to countenance an interpretation of the second prong of the ancillary jurisdiction test that would confer ‘unbounded’ jurisdiction on the Commission, Midwest Video II, 440 U.S. at 706, 99 S.Ct. 1435, we will not construe the first prong in a manner that imposes no meaningful limits on the scope of the FCC’s general jurisdictional grant.”⁸⁶
“The insurmountable hurdle facing the FCC in this case is that the agency’s general jurisdictional grant does not encompass the regulation of consumer electronics products that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission.”⁸⁷
“[T]he Commission maintains that congressional policy by itself creates ‘statutorily mandated responsibilities’ sufficient to support the exercise of section 4(i) ancillary authority. Not only is this argument flatly inconsistent with Southwestern Cable, Midwest Video I, Midwest Video II, and NARUC II, but if accepted it would virtually free the Commission from its congressional tether.⁸⁸

B. The Difference between “Substantive” and “Procedural” Regulatory Authority

Even in instances where an agency has some statutory power to promulgate rules, one must consider what types of rules an agency may adopt. Did Congress give the agency authority to create substantive rules that impact the public generally, or did Congress limit such authority to procedural rules to govern the internal activities of the agency, or at most, rules that regulate the relationship between the agency itself and the outside world?⁸⁹ Sometimes it is far from clear the extent of rulemaking authority that has been granted by Congress.

One method of analysis for differentiating between the granting of substantive versus procedural rules is whether Congress granted the agency the authority to enforce such rules through civil penalties in the same statute in which it granted rulemaking authority.⁹⁰ This convention holds that, absent any provision for enforcement that includes sanctions, an agency can issue only procedural “housekeeping” or “interpretive” rules, which do no more than “advise the public of the agency’s construction of the statutes and rules which it administers.”⁹¹ An agency that attempts to promulgate substantive rules without any statutory authority to enforce such rules through civil penalties runs the risk of violating the nondelegation doctrine.⁹²

Therefore, before we can determine who should regulate outer space activities, we must determine who can regulate space within their existing statutory mandate. In almost all cases, statutory authority to regulate outer space is lacking, even for certain agencies whose rules heretofore have gone unchallenged.

VI. An Agency-by-Agency Review of Space Regulatory Authority

For each agency that plays a role in regulating outer space activities, I review their statutory authority under three rubrics:

What does their organic statute say about their authority to promulgate rules?
Does the statute delegate to the agency rulemaking authority to make merely procedural rules? Or may they adopt substantive rules that impact a wider community?
Does the statute provide the agency with enforcement powers, and do those powers include monetary sanctions?

A. The White House National Space Council—What Is Its Regulatory Role?

The White House’s National Space Council has an “on-again, off-again history.”⁹³ It has its roots in the 1958 NASA Act, which called for the establishment of a “National Aeronautics and Space Council,” which would include specific cabinet officials.⁹⁴ So there is a statutory basis for the Council, though as we’ll see, that organic statute has been ignored for much of the past 60 years. The original role of the Space Council was to “advise the President with respect to the performance of the duties” under the Act, which included:

(1) survey all significant aeronautical and space activities, including the policies, plans, programs, and accomplishments of all agencies of the United States engaged in such activities; (2) develop a comprehensive program of aeronautical and space activities to be conducted by agencies of the United States; (3) designate and fix responsibility for the direction of major aeronautical and space activities; (4) provide for effective cooperation between the National Aeronautics and Space Administration and the Department of Defense in all such activities, and specify which of such activities may be carried on concurrently by both such agencies notwithstanding the assignment of primary responsibility therefor to one or the other of such agencies; and (5) resolve differences arising among departments and agencies of the United States with respect to aeronautical and space activities under this Act, including differences as to whether a particular project is an aeronautical and space activity.⁹⁵

Note that the original role of the National Space Council was limited to government activities and coordination among various government agencies. There is no mention of any regulatory role vis-à-vis the private sector in the enabling statute. The original mandate of the National Space Council was amended in 1961 by trimming the Council to just five members and naming the vice president as Chair.⁹⁶ President Nixon eliminated the Council in 1973, along with the Office of the Science Advisor. The latter President Ford reinstated in 1976.⁹⁷ During the Reagan administration, space advisory functions were housed in the National Security Council, which received input from its senior advisory groups, with Reagan refusing congressional demands to reinstate the Council, including vetoing the NASA Authorization Act, which contained a provision requiring reinstatement.⁹⁸

The National Space Council was revived under the George H.W. Bush administration following the passage of the NASA Authorization Act of 1989.⁹⁹ Its expanded membership that looks closer to the current agency lineup. However, the newly reconstituted National Space Council was not universally accepted. “NASA Administrator Richard Truly wanted his agency to stay focused on the shuttle and space station, and openly expressed his disdain for [Bush’s Space Exploration Initiative and a call to return to the Moon], which helped to sour the agency’s relationship with the space council.”¹⁰⁰

The Council was disbanded again during the Clinton administration, and each administration’s space policies were developed without a Council through both the George W. Bush and Obama administrations. Thus, for over two thirds of the time since the 1958 NASA Act (44 of 65 years), although required by Congress, the National Space Council has not actually existed.

President Trump revived the National Space Council in 2017. Chaired by Vice President Mike Pence, it saw a further increase in its membership.¹⁰¹ Also, for the first time, the National Space Council’s functions were specifically expanded to “foster close coordination, cooperation, and technology and information exchange among the civil, national security, and commercial space sectors.”¹⁰² The Trump National Space Council was quite active, doing the background work for what became a substantial set of deliverables by the White House on space policy.¹⁰³ It had a much greater focus on commercial space, including Space Policy Directive 1 (SPD-1), which amended Presidential Policy Directive-4 of June 28, 2010 by stating that it is the policy of the United States to “Lead an innovative and sustainable program of exploration with commercial and international partners to enable human expansion across the solar system and to bring back to Earth new knowledge and opportunities.”¹⁰⁴

Similarly, Space Policy Directive 2 (SPD-2) called for “streamlining regulations on commercial use of space,” and directed the Secretary of Transportation to review, and where appropriate, amend its rules to meet the policy goal to “promote economic growth; minimize uncertainty for taxpayers, investors, and private industry; protect national security, public-safety, and foreign policy interests; and encourage American leadership in space commerce.”¹⁰⁵ SPD-2 also called on the Secretary of Commerce to review regulations under the Land Remote Sensing Policy Act of 1992 to likewise streamline remote sensing licensing.¹⁰⁶

Space Policy Directive 3 (SPD-3) set forth a policy for establishing a more formal plan for space traffic management (STM) and directed that such an initiative be housed in the Department of Commerce.¹⁰⁷ SPD-3 made clear that the commercial space sector plays a vital role in future space development:

The future space operating environment will also be shaped by a significant increase in the volume and diversity of commercial activity in space. Emerging commercial ventures such as satellite servicing, debris removal, in-space manufacturing, and tourism, as well as new technologies enabling small satellites and very large constellations of satellites, are increasingly outpacing efforts to develop and implement government policies and processes to address these new activities.

To maintain U.S. leadership in space, we must develop a new approach to space traffic management (STM) that addresses current and future operational risks. This new approach must set priorities for space situational awareness (SSA) and STM innovation in science and technology (S&T), incorporate national security considerations, encourage growth of the U.S. commercial space sector, establish an updated STM architecture, and promote space safety standards and best practices across the international community.¹⁰⁸

The three key space policy directives of the Trump administration remain in place today. The Biden administration further expanded the membership of the National Space Council through Executive Order 14056.¹⁰⁹ The Biden administration also issued the United States Space Priorities Framework, which underscores the vital role of the commercial space sector, including the need to establish a “regulatory environment that enables a competitive and burgeoning U.S. commercial space sector.”¹¹⁰

Notwithstanding the uptick of activity by the National Space Council, it is clear from its authorizing statute that the authority of the Council is limited. Its role is to “advise and assist the President on space policy and strategy.”¹¹¹ Further, “[t]he operation of the Council shall not interfere with the existing lines of authority in or responsibilities of any agency.”¹¹² There is no hint in the statute that Congress intended for the Council to promulgate rules, and the NASA Act (as amended) contains no provisions allowing the Council to enforce any of its policies.

Thus, it is clear that the National Space Council has no authority from Congress to regulate outer space activities. It functions solely to coordinate between executive branch agencies. Any regulations must come from other agencies, and their ability to regulate must stem from their authorizing statutes.

B. The FCC—Keeper of the Frequencies

1. Regulatory Authority

The authority of the FCC to regulate space comes from the Communications Act of 1934,¹¹³ and the Communications Satellite Act of 1962.¹¹⁴ The original Communications Act of 1934 gave the FCC broad, but not unlimited, power to ensure that “[a]ll charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is hereby declared to be unlawful.”¹¹⁵ Congress directed the Commission in the 1934 Act to regulate carriers “consistent with the public interest,”¹¹⁶ a term that judges have struggled to define over the years.¹¹⁷

Most important for this discussion, Congress also authorized the FCC to allocate and license frequencies.

Except as otherwise provided in this Act, the Commission from time to time, as public convenience, interest, or necessity requires, shall . . . assign bands of frequencies to the various classes of stations, and assign frequencies for each individual station and determine the power which each station shall use and the time during which it may operate.¹¹⁸

This authority has been upheld in the broadest terms by the courts over the years.¹¹⁹ Not surprising, the words “space,” and “satellite” do not appear in the 1934 Act. Indeed, the FCC first took up the issue of frequencies for space uses in 1957 following a series of articles and filings by Andrew G. Haley, former general counsel of the FCC, general counsel of the American Rocket Society (ARS), and president of the International Astronautics Federation (IAF).¹²⁰ Haley argued both before the FCC and the International Telecommunications Union (ITU) that spectrum needed to be set aside for space uses.

In April 1957, the FCC issued a Notice of Inquiry in Docket 11997 to look into non-government allocations in the 23-890 MHz band,¹²¹ and a Fifth Notice of Inquiry in Docket 12263 on December 9, 1957, requesting comments on allocations above 890 MHz.¹²² At the 1959 Conference in Geneva, the ITU for the first time established two new services, the “space service,” and the “earth-space service.”¹²³

While the FCC was studying how to implement the ITU’s new space allocation, Congress passed the Communications Satellite Act of 1962. It created a quasi-private corporation, COMSAT, to establish “as expeditiously as practicable a commercial communications satellite system, as part of an improved global communications network, which will be responsive to public needs and national objectives, which will serve the communication needs of the United States and other countries, and which will contribute to world peace and understanding.”¹²⁴ The COMSAT Act further authorized the FCC to regulate certain aspects of COMSAT, including “insure that all present and future authorized carriers shall have nondiscriminatory use of, and equitable access to, the communications satellite system and satellite terminal stations under just and reasonable charges, classifications, practices, regulations, and other terms and conditions and regulate the manner in which available facilities of the system and stations are allocated among such users thereof.”¹²⁵

It is important to note that the COMSAT Act limited the FCC’s authority to “communications satellite[s],” defined as “an earth satellite which is intentionally used to relay telecommunication information.”¹²⁶ Congress also stated that: “It is not the intent of Congress by this Act to preclude the use of the communications satellite system for domestic communication services where consistent with the provisions of this Act nor to preclude the creation of additional communications satellite systems, if required to meet unique governmental needs or if otherwise required in the national interest.”¹²⁷

While limited to “communications satellites” that “relay telecommunications information,” the ability of the FCC to promulgate regulations under the COMSAT Act is broad.

Under section (4)(j) of the Communications Act, the Commission has broad discretion to adopt such procedures, policies, and application requirements as will best conduce to the proper dispatch of its business and to the ends of justice. Moreover, under section 303 of the Communications Act, the Commission, among other things, may classify radio [earth] stations, prescribe the nature of the services to be rendered by each class, determine their location, and impose such other requirements relating to their operation. This broad grant of policy and rulemaking authority is supplemented by section 201(c)(11) of the Satellite Act which directs the Commission to make rules and regulations to carry out the provisions thereof (see also sec. 303(r) of the Communications Act). In addition, the Commission may delineate elements of the public interest which applicants for station licenses must meet and may dismiss or reject, without hearing, such applications which fail to meet such requirements (NBC v. U.S., 319 U.S. 190; U.S. v. Stover Broadcasting Co., 351 U.S. 192). There is also no indication that Congress in any way specified a particular procedure to be followed in making the requisite public interest judgments under section 201(c)(7), or that it withdrew from the Commission any particular procedure; e.g., the adoption of a general policy or the issuance of rules and regulations.¹²⁸

The Commission licensed the first commercial U.S. domestic fixed satellites not operated by COMSAT in 1970 when five companies were authorized to construct systems that would provide fixed-satellite services solely within the United States.¹²⁹ The FCC did so by concluding that space communications operations fit within its regulatory purview:

[T]he F.C.C. announced that the national interest would be best served by licensing non-governmentally owned and operated telecommunication satellites. In reaching this conclusion, the F.C.C. looked at two fundamental questions: first, did the F.C.C. have the legal authority to regulate the construction and use of domsat systems, and second, if the F.C.C. had such authority, how would the public interest be best served. In analyzing the first question, the F.C.C. noted three provisions of the Federal Communications Act of 1934. First, all nongovernment owned radio stations must be licensed by the F.C.C. Second, a radio station is defined as a station equipped to engage in radio communications. And, third, radio communication is defined as the “transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including . . . [among other things, the receipt, forwarding, and delivery of communications] incidental to such transmissions.” Together, these three provisions led the F.C.C. to the conclusion that because a telecommunication satellite is a radio station engaged in receiving and forwarding radio communications, domsats (the space segment and earth-stations) may be regulated by the F.C.C.¹³⁰

The FCC further adopted regulations to implement the WARC-71 allocation of additional frequencies for space use.¹³¹ Since then, the FCC has a long history of licensing satellite systems.

In recent years the FCC has issued many frequency allocations and licenses with conditions that go beyond issues of interference. For example, in 2004 the FCC adopted comprehensive rules requiring licensees to submit an orbital debris mitigation plan as part of its license application (discussed more fully below in Section VII).¹³² In doing so, the FCC concluded that “orbital debris mitigation issues are a valid public interest consideration in the Commission’s licensing process.”¹³³ Only one commenter in that proceeding even raised the issue of whether the FCC had statutory authority to address orbital debris, but that “commenter does not provide any legal analysis to support its position and does not address any of the analysis provided in the Notice.”¹³⁴

Apparently unconvinced by its own arguments from 2004, the FCC questioned whether it had statutory authority to regulate orbital debris in its Notice of Proposed Rulemaking to amend its rules in 2019.

With respect to the rules proposed here, the Commission revisits the Commission’s discussion in 2004, which addressed the Commission’s responsibilities and obligations under the Communications Act of 1934 (the Act). The 2004 Orbital Debris Order specifically referenced the Commission’s authority with respect to authorizing radio communications, including the statements in the Act that charge the FCC with encouraging ‘‘the larger and more effective use of radio in the public interest,’’ and provide for licensing of radio communications, upon a finding that the ‘‘public convenience, interest, or necessity will be served thereby.’’ Did the 2004 order cite all relevant and potential sources of Commission authority in this area? Do the provisions discussed, or other statutory provisions, provide the Commission with requisite legal authority to adopt the rules we propose today?¹³⁵

In adopting a rule shortening the time that operators can allow their satellites to remain in orbit after ceasing operations from 25 years to five years, the FCC merely cited back to its general authority to license frequency uses in the “public interest.”¹³⁶

Just last year, the FCC issued a Notice of Inquiry (NOI) seeking input as to how it should regulate in-orbit servicing, assembly, and manufacturing (ISAM).¹³⁷ Curiously, the only reference in the ISAM NOI to the FCC’s statutory authority relates to whether ISAM will “promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well as the scope of the Commission’s relevant legal authority.”¹³⁸ As TechFreedom pointed out in its comments:

While the current FCC orbital debris mitigation requirements might be sustainable under current delegated authority to determine whether a satellite communications system was in the public interest, what is involved in ISAM manifestly is not a “satellite communications system.” Rather, ISAM is a wide-ranging set of activities that can be conducted outside the atmosphere of the Earth, some, but certainly not all of which, may involve communications satellites.¹³⁹

Several members of Congress similarly have questioned whether the FCC can regulate ISAM.

At the recent meeting of the National Space Council on September 9, 2022, which you attended, Vice President Harris underscored the importance of coordination and collaboration on federal space activities. The Commission’s interest in acting alone to regulate orbital debris mitigation, however, poses the potential for creating confusion in an area that has historically been closely coordinated. Within the Federal government, agencies follow U.S. Orbital Debris Mitigation Standards and Practices, which are developed through coordination within the Federal government and based on scientific and technical research led by the National Aeronautics and Space Administration (NASA). In addition, NASA has been charged with reevaluating those standards and action by the FCC at this time could lead to conflicting U.S. guidelines.¹⁴⁰

This is not the first time Congress has questioned the ability of the FCC to adopt rules governing space activities.¹⁴¹ Other agencies have questioned the FCC’s jurisdiction over space operations as well, as the Department of Commerce did in 2019.

It is clear that, given the multiple regulatory schemes across executive branch agencies impacting space commerce generally and orbital debris specifically, commercial space policies must be based on the technical expertise of the whole government. To that end, the [Commerce] Department has contributed to interagency efforts to achieve these shared space policy goals by leading administration efforts to advance space commerce, and The President’s Space Policy Directives are producing results and increasingly support a thriving space commerce industry in the U.S. As it leads the federal effort to dramatically grow U.S. space commerce, the Department shares the Commission’s objective “to ensure continued, safe operations in space and maximize space commerce investments and innovation.” Without a collaborative approach across federal agencies and independent authorities this objective cannot be attained.¹⁴²

Given the questions raised by other agencies which themselves possess some statutory authority to regulate space activities, as well as the current legal landscape regarding agency discretion in issues rules, it is highly questionable as to whether the FCC has authority to regulate space activities that do not directly relate to providing satellite communications services to and from space.¹⁴³

2. FCC Enforcement Authority

Congress provided the FCC, unlike virtually all other agencies discussed herein, statutory enforcement powers under Part 500 of Title 47. This includes a “general penalty” provision in Section 501 (including potential criminal penalties),¹⁴⁴ as well as civil penalties for violation of FCC rules under Section 502.¹⁴⁵ Recently, the FCC proposed its largest fine ever—$300 million—against an auto warranty scam robocaller.¹⁴⁶ The FCC has an entire “Enforcement Bureau,” which acts as the FCC’s cop and boasts a laundry list of areas in which it enforces FCC rules.¹⁴⁷ Criminal matters are referred to the Department of Justice for prosecution.¹⁴⁸ Generally speaking, the statute of limitations for enforcement is one year,¹⁴⁹ but the FCC on many occasions has concluded that its enforcement and recoupment powers are without any time limitations when it seeks to recover government benefits it determines were improperly paid.¹⁵⁰

Of all the agencies analyzed in this paper, the FCC’s rulemaking and enforcement authorities are the clearest. What is far from clear, however, is whether, after West Virginia v. EPA and NAB v. FCC, that authority extends to activities in space that do not relate specifically to providing telecommunications services via space.

C. The FAA—Thou Shalt Not Launch (or Reenter) without a License

1. FAA Regulatory Authority over Launch and Reentry

Congress granted authority to license commercial space launches to the Department of Transportation through the Federal Aviation Administration’s Office of Commercial Space Transportation (AST) in the 1984 Commercial Space Launch Act (CSLA).¹⁵¹ The CSLA required the Secretary of Transportation to “establish procedures and timetables to expedite review of applications under this section and to reduce regulatory burdens for applicants.”¹⁵² Much like the Department of Commerce,¹⁵³ Congress also tasked the FAA to “encourage, facilitate, and promote commercial space launches by the private sector.”¹⁵⁴

Congress amended the CSLA several times, beginning in 1988 to establish insurance requirements for launches,¹⁵⁵ in 1994 to give the FAA enforcement powers,¹⁵⁶ in 1998 to give the FAA authority to issue licenses for the reentry of vehicles from space, and the operation of domestic launch sites,¹⁵⁷ and again in 2004 to provide the FAA with limited authority to regulate human commercial spaceflight, including a charge that the FAA “promote the development of the emerging commercial human space flight industry.”¹⁵⁸ Nonetheless, the 2004 amendments significantly limited the FAA from promulgating specific rules for human space flight.

The [Commercial Space Launch Amendments Act (CSLAA)] recognized that U.S. companies are developing space vehicles intended to carry humans. As a result, the CSLAA clarified the FAA’s responsibility for regulating commercial human space flight. However, the CSLAA also limited the extent to which AST could regulate the safety of persons onboard until 2012. The Act instructed the FAA that the “regulatory standards governing human space flight must evolve as the industry matures so that regulations neither stifle technology development nor expose crew or space flight participants to avoidable risk . . .” Also, the term “space flight participant” was introduced to characterize non-crew members on board. The term “passenger” was avoided as these individuals will be significantly more aware of the risks and undergo substantial training that is well above the basic requirements of a commercial airline passenger. The CSLAA mandates that space flight participants provide informed consent.¹⁵⁹

This “moratorium” on passenger safety regulations has been extended several times, although it is set to expire in October 2023.¹⁶⁰ It is important to note that the FAA sees its role in the licensing regime primarily as protecting the safety of the uninvolved public, far more so than in making any sort of determination as to whether the launch in question is a good idea.

The FAA’s safety role was initially confined to protecting the public—namely, people who are not involved in a given launch or reentry—from the hazards posed by these [expendable launch vehicles (ELVs)]. Because the vehicle’s stages are full of propellant with a high explosive yield, the FAA’s regulations require that a launch operator or a federal range have the capability to destroy the vehicle in the event of an anomaly so the launch vehicle does not reach a populated area like a city. The operator drops the rocket’s empty stages in the ocean. The FAA’s regulations require that the areas below be clear of aircraft and shipping, just as it requires such clearances at launch and reentry. The FAA’s regulations for protecting the public address the design, operation, and testing of a vehicle’s flight-termination system, acceptable levels of risk, and vehicle hazards, including debris, toxic releases, and overpressure.¹⁶¹

This authority applies not only to the rockets themselves, but to their payloads, and the FAA has issued several letters related to specific payloads to be sent beyond low earth orbit, and whether it will authorize such payloads to be launched under its payload review authority.¹⁶²

Since it received explicit congressional authority to regulate launches, the FAA has issued over 530 authorizations (either licenses or permits) for space launches.¹⁶³ In addition, the FAA has issued a robust set of regulations under Title 14 of the Code of Federal Regulations,¹⁶⁴ and a number of explanatory letters and memos interpretating the FAA’s authority in this area.¹⁶⁵

As figure 1 indicates, the pace of licensing has picked up substantially over the last few years. The Government Accountability Office (GAO) has questioned whether the FAA can meet the demands of the commercial space sector, even after issuing a set of streamlined regulations in 2020.¹⁶⁶

FAA also has taken some steps to help the agency keep pace with changes in the industry. For example, in response to recommendations GAO made in 2019, FAA recently assessed its workforce to identify skills and competencies that are needed among its workforce and is working to improve its workload projections to better account for the full range of its regulatory activities and the timeline of its licensing process. Such efforts are critical for ensuring FAA can better anticipate and respond to the growing and evolving commercial space industry and FAA’s emerging workforce needs.

The continuing growth in the number of launches places a premium on FAA’s ability to safely and efficiently integrate commercial space users into the National Airspace System. However, we reported in 2019, that both FAA officials and selected industry stakeholders said FAA’s current approach is inefficient.¹⁶⁷

Others have echoed those concerns,¹⁶⁸ and the FAA itself recently asked for more than a ten percent increase in its budget as part of the FY2024 budget.¹⁶⁹

While the FAA has authority to license launches, reentries, and payloads, it does not have explicit authority to regulate activities in space beyond making determinations as to whether launches, reentries, and payloads pose a danger to the uninvolved public.¹⁷⁰ This “gap” has been noted before, and while the Obama administration originally intended to task the FAA to license space activities, the Trump administration thought that authority should vest in the Department of Commerce.¹⁷¹ What both administrations missed, however, is that neither of these agencies has statutory authority to authorize or supervise innovative space uses, and even the current effort by the National Space Council cannot solve the problem without new statutory authority from Congress.¹⁷²

2. FAA Enforcement Authority over Launch and Reentry Activities

Congress granted the FAA enforcement powers under what is now Section 70115.¹⁷³ “A person may not violate this chapter, a regulation prescribed under this chapter, or any term of a license issued or transferred under this chapter.”¹⁷⁴ The FAA’s enforcement powers include the authority to “conduct investigations and inquiries,”¹⁷⁵ “take affidavits,”¹⁷⁶ “enter at a reasonable time a launch site, reentry site, production facility, assembly site of a launch vehicle or reentry vehicle, or site at which a payload is integrated with a launch vehicle or reentry vehicle to inspect an object to which this chapter applies or a record or report the Secretary requires be made or kept under this chapter,”¹⁷⁷ and “seize the object, record, or report when there is probable cause to believe the object, record, or report was used, is being used, or likely will be used in violation of this chapter.”¹⁷⁸ The FAA has the authority to suspend or revoke licenses,¹⁷⁹ and civil penalty authority under Section 70115(c).¹⁸⁰

The FAA recently proposed a fine of $175,000 against SpaceX for not submitting required pre-launch data on collision avoidance in conjunction with its August 19, 2022, Falcon 9 launch.¹⁸¹ The FAA has been much more aggressive in suspending or revoking launch licenses under Section 50908.¹⁸²

D. The Department of Commerce—Still Adrift after All These Years

1. Commerce’s Regulatory Authority over Space Activities

Somewhat similar to the National Space Council, the role of the Department of Commerce in outer space regulation has been murky at best. Within the Department of Commerce resides both the Office of Space Commerce and the National Oceanic and Atmospheric Administration (NOAA) (discussed separately below) as it relates to the agency’s regulatory authority over remote sensing. The Secretary of Commerce originally created the Office of Space Commerce in 1988.¹⁸³ Although Congress appropriated money for the office as early as 1990,¹⁸⁴ Congress did not officially recognize or codify its roles, until 1998.¹⁸⁵ Despite numerous calls to separate the Office of Space Commerce from NOAA,¹⁸⁶ it remains underneath NOAA, and is not a “direct report” to the Secretary of Commerce. The role of the Office was amended in 2015, but Congress failed to provide it clear regulatory authority:¹⁸⁷

The Office shall be the principal unit for the coordination of space-related issues, programs, and initiatives within the Department of Commerce, including—

to foster the conditions for the economic growth and technological advancement of the United States space commerce industry;

to coordinate space commerce policy issues and actions within the Department of Commerce;

to represent the Department of Commerce in the development of United States policies and in negotiations with foreign countries to promote United States space commerce;

to promote the advancement of United States geospatial technologies related to space commerce, in cooperation with relevant interagency working groups; and

to provide support to Federal Government organizations working on Space-Based Positioning Navigation, and Timing policy, including the National Coordination Office for Space-Based Position, Navigation, and Timing.¹⁸⁸

Notwithstanding this lack of actual regulatory authority (or maybe implicitly admitting that no such authority exists), the Department of Commerce’s 2022–2026 Strategic Plan lists as the first strategy of the Office of Space Commerce:

STRATEGY 1: Coordinate regulatory functions across domestic and international stakeholders to promote competitiveness, and increase legal certainty for U.S. commercial space businesses. The Department will convene Federal, state, and international stakeholders as appropriate to identify and act on regulatory issues and opportunities for commercial space businesses with a whole-of-government approach. As commercial space activities expand into new areas and business models, the Department’s Office of Space Commerce will partner with these stakeholders to coordinate regulatory functions that promote competitiveness and increase legal certainty for space businesses. Coordinated regulation will support existing space activities and ensure regulatory frameworks address emerging missions.¹⁸⁹

While the Office of Space Commerce may have an important function in terms of interagency coordination, Congress never has bestowed on it any actual regulatory powers, especially not the power to promulgate rules related to commercial outer space activities (beyond those related to NOAA’s licensing of remote sensing activities).

2. Commerce’s Enforcement Authority

Given the fact that Congress has never given Commerce any authority to promulgate rules related to space activities, it should come as no surprise that Commerce lacks any specific enforcement powers related to space activities. While Commerce has plenty of enforcement authority in other areas, such as export controls,¹⁹⁰ and certain trade practices such as antidumping,¹⁹¹ those powers appear to be limited to the specific and not generally applicable to other activities of the agency.¹⁹²

E. NOAA—Look, but Don’t Tell

1. NOAA’s Regulatory Authority

The one place space regulatory power exists in the Department of Commerce is with NOAA and its authority to regulate and license Earth remote sensing under the Land Remote Sensing Commercialization Act of 1984,¹⁹³ subsequently amended in 1992,¹⁹⁴ and 2010.¹⁹⁵ The remote sensing provisions in the U.S. Code reside in 51 U.S.C. Chapter 601.¹⁹⁶ Section 60124 specifically authorizes the Secretary of Commerce to issue regulations related to Earth remote sensing.¹⁹⁷ The rules for commercial remote sensing reside in 15 CFR Part 960.

Placing regulatory authority within an agency that also has operational authority to provide weather and other remote sensing services has produced a rocky history for commercial remote sensing (CRS).¹⁹⁸ NOAA’s regulatory authority is also somewhat constrained by the national security concerns posed by a technology that can reveal detailed information about human activity on the planet.

As a large technological system, the global panopticon of earth-imaging satellites has significant political implications that directly impact society. As earth observation systems have steadily advanced in technological sophistication, the U.S. political and bureaucratic institutions have been and will continue to be increasingly challenged to create, develop, refine, and implement policies that both promote the U.S. CRS industry and protect society (primarily in the U.S. but also on the international stage) from perceived threats posed by CRS systems. Such threats include the use of CRS as potential weapons in the hands of terrorists and narco-criminal enterprises, etc. The fact that CRS is considered a dual-use technology (i.e., can be used for military and non-military purposes) has created a rocky relationship between the U.S. CRS industry and USG actors. In other words, the technological capabilities of commercial observation satellites create a plethora of national security concerns and contentious policy issues.¹⁹⁹

These concerns have resulted in a cumbersome interagency process for review of remote sensing licenses.

The principal Parties to this [Memorandum of Understanding (MOU)] are the Department of Commerce (DOC), Department of State (DOS), Department of Defense (DOD), and Department of the Interior (DOI). The Office of the Director of National Intelligence (ODNI) and the Joint Chiefs of Staff (JCS) provide supporting advice pertaining to their areas of expertise. The Secretary of commerce is responsible for administering the licensing of private remote sensing satellite systems pursuant to the Act and applicable directives, and fulfills this responsibility through the National Oceanic and Atmospheric Administration (NOAA). For remote sensing issues, the Act also grants the authority to the Secretary of State to determine conditions necessary to meet international obligations and foreign policies, and to the Secretary of Defense to determine conditions necessary to meet the national security concerns raised by any remote sensing license application submitted pursuant to the Act and applicable directives, or to any amendment, renewal, or successor thereto. In addition, pursuant to this MOU, NOAA shall also consult with the Director of National Intelligence (DNI) for the views of the Intelligence Community (IC) and with the Chairman of the Joint Chiefs of Staff for the views of the DOD joint operational community.²⁰⁰

The market for remote sensing data developed very slowly once Congress “privatized” the Landsat system in the 1980s. Three factors allowed commercial remote sensing to emerge: 1) markets beyond the U.S. government began to develop; 2) remote sensing data could be operationalized through more sophisticated GIS systems; and 3) remote sensing satellite systems became smaller, cheaper, and easier to deploy. What began as a slow (almost non-existent) trickle of applications for commercial remote sensing licenses in the 1980s and 1990s began to rapidly expand until by the mid-2010s, there was a substantial backlog at NOAA, which slowed down processing times substantially.

During a panel session at the Satellite 2017 conference March 7, Tahara Dawkins, director of commercial remote sensing regulatory affairs at NOAA, said that prior to 2011, it took her office an average of 51 days to complete a review of a license application. That timeline, she said, was possible given the similarity in concepts for satellite systems being proposed. The situation is very different today. “What I’m getting in my office now is that, from one application to the next, they just don’t look alike,” she said. “Every week we’re getting applications with technology we just haven’t seen yet. And so we have to look at it and give it a thorough review.” Dawkins also acknowledged that her office is understaffed. “There’s no way we can keep up with the demand of this U.S. industry with the way we have been doing business,” she said.²⁰¹

Congress even got into the act, demanding that NOAA explain why applications that are required to be processed within 120 days²⁰² still remained ungranted after three years.²⁰³ This ultimately led the Department of Commerce to a significant overhaul of the remote sensing rules in 2020.²⁰⁴ These changes included a simplified application and review process for remote sensing satellites with lower resolutions.

At this point, I would be remiss not to give a public service announcement about NOAA’s licensing requirements. If you are a U.S. entity planning to operate a private spacecraft with an imager on it, please know that you must comply with NOAA’s regulations. The government has certain national security concerns when it comes to satellite imagery, and these must be considered before authorizing space systems capable of imaging Earth.

Having said that, not all imagers in space need a license. In some cases, imagers used primarily for mission assurance purposes may be totally exempt from NOAA licensing.

For those needing a license, thanks to a 2020 rewrite of our rules, the vast majority of imagers may only need simple licenses, with minimal conditions. To promote transparency, most of the license conditions are identified in the governing regulations. Only the most advanced, novel imagers are potentially subject to additional operating conditions based on national security, and even those conditions are time-limited.²⁰⁵

In addition to adding much needed clarity to NOAA’s rules, these changes (along with increased staffing), have allowed NOAA to significantly reduce processing time for commercial remote sensing applications.

I am proud to say that NOAA’s licensing of commercial remote sensing space systems has improved in terms of speed and efficiency. In 2022, the average time to process a new license application was 22 days, a 20% improvement over the previous year. Today, we oversee 92 licenses held by 70 licensees for 1,215 satellites. 415 of those are currently on orbit.²⁰⁶

In that same speech, however, Assistant Secretary Morgan demonstrated either confusion over the role of the Department of Commerce, or the tension between NOAA and the Office of Space Commerce (that sits within NOAA).

[After discussion of NOAA’s (not the Office of Space Commerce’s) regulatory role:] So that is the current regulatory role of the Office of Space Commerce—but there is an active conversation in Washington over whether this should be expanded beyond remote sensing operations. You may recall that Vice President Harris was here in Silicon Valley last August with members of the National Space Council. At that time, she announced the Administration’s ongoing work to develop a framework to replace outdated space rules, replacing them with a new rules framework that keeps pace with the pace of private sector innovation—in part to ensure they are conducted safely, efficiently, and sustainably. NOAA is actively engaged and strongly supportive of this process. We stand ready to support the best possible oversight of new commercial space activities in a way that promotes competitiveness and increases legal certainty for U.S. businesses.

As stated in the U.S. Space Priorities Framework, which is this Administration’s guiding document on space policy, “U.S. regulations must provide clarity and certainty for the authorization and continuing supervision of non-governmental space activities, including for novel activities such as on-orbit servicing, orbital debris removal, space-based manufacturing, commercial human spaceflight, and recovery and use of space resources.”

NOAA and the Department of Commerce view space mission authorization as critical to promoting competitiveness and increasing legal certainty for U.S. commercial space businesses. Through the Office of Space Commerce, we already play an important role in licensing commercial remote sensing satellites. Our regulatory approach is highly effective in promoting U.S. commercial leadership in space while protecting public interests.²⁰⁷

The problem remains, of course, that outside of remote sensing licensing, the Department of Commerce has no statutory regulatory authority. When NOAA attempted to expand its authority to license “missions to conduct remote sensing from an orbit of any celestial body,”²⁰⁸ commenters pointed out that such increased authority was not supported by the language of the Act. Commerce then backtracked on this proposal.

After considering public comments and pertinent policy considerations, this definition now applies only to (1) remote sensing conducted when in orbit of the Earth, rather than in orbit of any celestial body; and (2) to collecting data that can be processed into imagery of the surface features of the Earth. This definition is based on the definition of ‘‘land remote sensing’’ found at 51 U.S.C. 60101(4). Therefore, systems that can only produce data that cannot be processed into Earth-surface imagery are not required to obtain a license under this final rule.²⁰⁹

Given this acknowledgement of its regulatory authority, it would be extremely difficult for Commerce to attempt to grant “mission authorizations” for space activities beyond Earth remote sensing without further statutory authority from Congress.

2. NOAA’s Enforcement Authority over Remote Sensing

Congress afforded the Department of Commerce certain enforcement authority in the remote sensing statute, including issuing civil penalties.²¹⁰ The enforcement provisions of Commerce’s authority are contained in 15 CFR Section 960.17.²¹¹ This includes the ability to utilize the Department of Commerce’s Civil Procedures contained in 15 CFR Part 904,²¹² and the procedure for issuing civil penalties.²¹³ One commenter has noted, however, related to the ability of the U.S. government to stop dissemination of sensitive information (so-called “shutter control”), that because Commerce’s civil penalty authority is limited to $10,000, “a licensee might simply decide that the cost of compliance is more than the price of punishment.”²¹⁴ I am unable to find any examples of the Department of Commerce using its civil penalty authority.

F. NASA—Experts in Science and Engineering but without Regulatory Expertise

1. NASA’s Regulatory Authority

For many, when they think of outer space, they think of NASA. There was a long period in which many commercial space ventures were viewed with high skepticism, the argument being that if the space endeavor was important, NASA would be doing it. Indeed, there was a certain “giggle factor” related to space activities that were neither telecommunications related, nor conducted by NASA.²¹⁵ You can’t really blame people, as NASA has been given a significant role in outer space exploration. That comes from NASA’s enabling statute, the National Aeronautics and Space Act of 1958.²¹⁶ The functions of NASA, as envisioned in 1958 were to:

plan, direct, and conduct aeronautical and space activities;
arrange for participation by the scientific community in planning scientific measurements and observations to be made through use of aeronautical and space vehicles, and conduct or arrange for the conduct of such measurements and observations; and
provide for the widest practicable and appropriate dissemination of information concerning its activities and the results thereof.²¹⁷

Congress provided some regulatory authority to NASA, “to make, promulgate, issue, rescind, and amend rules and regulations governing the manner of its operations and the exercise of the powers vested in it by law.”²¹⁸ Nonetheless, NASA is not a regulatory agency.²¹⁹

Congress has amended the NASA Act numerous times.²²⁰ Of particular import to this discussion, and in determining whether NASA has any regulatory authority over commercial activities in space, the 1958 NASA Act did not contain either the terms “industry,” or “commercial.” The issue of NASA’s interface with commercial space ventures has slowly crept into the NASA statute, most notably with the addition of Section 102(b) in 1985.

The Congress declares that the general welfare of the United States requires that the National Aeronautics and Space Administration (as established by title II of this Act) seek and encourage, to the maximum extent possible, the fullest commercial use of space.²²¹

Congress in 1991 again directed NASA to “seek and encourage, to the maximum extent possible, the fullest commercial use of space; and encourage and provide for Federal Government use of commercially provided space services and hardware, consistent with the requirements of the Federal Government.”²²² In neither of these two instances, however, did Congress order NASA to “regulate” or “authorize” commercial use of outer space.

14 CFR Chapter V contains the rules and regulations promulgated by NASA over the years.²²³ The vast majority of these regulations address truly internal operations of NASA.²²⁴ Other rules touch on tangential commercial activities, such as Part 1214, which relates to International Space Station (ISS) crew and use of the NASA insignia.²²⁵ Probably the most important NASA regulation touching on commercial space is contained in Part 1245, which prescribes regulations for the waiver of rights of the government of the United States to inventions made under NASA contract.²²⁶ Finally, Part 1266 imposes cross-waiver of liability requirements, which essentially relieves the government of liability for activities onboard ISS, which includes commercial activities (although the word "commercial” does not appear).²²⁷

Beyond the regulations contained in Title 14 of the CFR, commercial entities doing business with NASA are often subject to the Federal Acquisition Regulations (FAR), NASA FAR Supplement (NFS).²²⁸ NASA and commercial companies can sometimes avoid the cumbersome NFS requirements by entering into Space Act Agreements under NASA’s “other transactions” authority.²²⁹ NASA has used this authority to great effect within the past decade, saving NASA an extensive amount of money.²³⁰ But to be clear, these Space Act Agreements are contracting methods, not regulations in the purest sense of the term.

NASA also issues NASA Interim Directives (NIDs) related to its interaction with commercial entities.²³¹ Yet these NIDs still involve essentially contractual relationships with a direct involvement of NASA as one party (e.g., owner and operator of the ISS), rather than rules handed down by NASA regulating the activities of commercial entities outside of its relationship with NASA.

To see how these regulations and contracts work in practice, the Axiom-1 mission provides an interesting model. Axiom Space launched its Axiom-1 mission to the ISS on April 8, 2022, the first purely private mission to ISS.²³² In order to gain NASA approval to dock with the ISS, Axiom entered into a very detailed agreement with NASA, which required Axiom to purchase $10 million in insurance for any potential damage done to ISS during the stay.²³³ Efforts to effectively determine NASA’s cost in hosting the Axiom-1 crew was abandoned as not practical.²³⁴ So, rather than trying to adopt rules related to commercial crew visitation to ISS, NASA chose to “regulate” through contract. Literally holding the keys to ISS’s front door, NASA could demand contractual protections rather than try and promulgate broader regulations related to commercial activity onboard ISS.²³⁵

Ultimately, the unanswered question is the extent of NASA’s authority to issue regulations for commercial activities that do not directly impact NASA operations. One the one hand, Section 203 allows the NASA Administrator to “to make, promulgate, issue, rescind, and amend rules and regulations governing the manner of its operations and the exercise of the powers vested in it by law.” NASA apparently has interpreted this statutory authority narrowly, as can be seen in the rules promulgated in 14 CFR Part Chapter 5. This makes sense if this provision is interpreted based on NASA’s overall statutory authority as contemplated by Congress in 1958. With the addition of language related to commercial operations, however, an aggressive NASA might decide that it too wants in on the regulatory game, and push to promulgate rules over commercial operations that do not touch directly on its “operations.”

2. NASA’s Enforcement Authority

The argument that NASA’s regulatory authority is limited to procedural, or “housekeeping” functions is buttressed by the fact that neither its authorizing statute, nor any regulations actually outline NASA’s enforcement authority. For example, in its 2011 “Preliminary Plan for Retrospective Analysis of Existing Regulations,”²³⁶ the only references to “enforce” related to the spacecraft commander rights to “enforce order and discipline,”²³⁷ and restrictions on lobbying that are to be enforced through penalties.²³⁸ The only reference to “penalties” refers to enforcing the Fraud Civil Penalties Act of 1986.²³⁹

On the contract side of things, NASA has flexed its muscle threatening or issuing monetary penalties to its contractors.²⁴⁰ It routinely suspends or revokes contracts when contractors breach or otherwise fail to perform, or when NASA priorities change.²⁴¹

G. Department of Defense and the Space Force—Keepers of National Security

Of all the vital roles that the Department of Defense plays in American society, regulating commercial outer space activities doesn’t come swiftly to mind. Because DoD is entrusted with protecting our national security, however, it has an oversized impact on commercial space, which goes beyond the nearly $30 billion budget of the Space Force, much of which flows into the private sector in the form of research, development, and testing of space defense (and dual use) systems.²⁴² But DoD’s interest in space is not limited to the Space Force, as one report estimates that there are more than 60 organizations with military space interests or responsibilities within DoD.²⁴³ Thus, DoD is a major player in outer space.

1. DoD’s Regulatory Authority

DoD has established the “DoD Regulatory Program,”²⁴⁴ which lists as its “authority” the Administrative Procedures Act,²⁴⁵ the Federal Register Act,²⁴⁶ the Unfunded Mandates Reform Act,²⁴⁷ the Regulatory Flexibility Act,²⁴⁸ the Paperwork Reduction Act,²⁴⁹ and the Congressional Review Act.²⁵⁰ DoD has issued a number of regulations over the years, contained in Title 32 of the Code of Federal Regulations, which include the FARs.²⁵¹ As with NASA’s regulations, however, most of Title 32 (apart from the FARs), relate to the internal operations of the various defense branches.²⁵²

DoD also has a major impact on commercial space, especially given its historic role in space situational awareness (SSA).²⁵³ DoD participates in a number of interagency groups, often designated so by Congress.²⁵⁴ DoD sometimes wields a veto (many times silent) on other agency actions vis-à-vis the commercial space sector.²⁵⁵ During the period in which virtually all space hardware sat on the “munitions list” under the International Trafficking in Arms Regulations (ITAR), many commercial space companies complained about not being able to receive export licenses because of objections raised by DoD.²⁵⁶ Others have complained that the FCC’s ability to allocate additional frequencies for space usage has been stymied by DoD efforts to maintain control of its legacy communications systems.²⁵⁷ And as noted above, some military analysts have argued that without clear authority to “authorize” and “supervise” activities under Article VI of the OST, innovative uses of outer space are prohibited.²⁵⁸

Doing business with DoD often entails complying with the costly and cumbersome Federal Acquisition Regulation (FAR).²⁵⁹ Like NASA, however, DoD continues to explore,²⁶⁰ and in many cases utilize, its “Other Transactions Authority.”²⁶¹

The federal government’s use of Other Transaction Authority (OTA) agreements has exploded in recent years, thanks in large part to a surge in popularity within the Department of Defense (DoD). Rather than a contract, grant, or cooperative agreement, OTAs are an acquisition approach that pursues innovation by enabling certain federal agencies to access goods and services outside of the traditional acquisition system.²⁶²

It is unclear whether the Space Force will embrace OTAs with the same enthusiasm as DoD.²⁶³ Indications are, however, that the Space Force will continue to embrace this contracting method,²⁶⁴ including increased utilization of the Space Development Agency as a contractor using OTAs.²⁶⁵ As with NASA’s Space Act Agreement OTAs, DoD and the Space Force can, in many ways, regulate through contract, rather than promulgating rules that directly impact the commercial space sector writ large.

2. DoD’s Enforcement Authority

The DoD has broad enforcement powers under the FARs,²⁶⁶ including recovery of treble damages for false claims made in defense procurement.²⁶⁷ Both civil penalty and criminal prosecutions for violations of the FARs are common.²⁶⁸ This once again demonstrates that DoD’s real power to regulate the commercial space sector stems from its ability to award (and recapture) money.

VII. Orbital Debris—Everything Wrong with Space Regulation

Thus far I’ve discussed the perceived “gaps” in regulatory authority related to commercial outer space, especially for innovative space uses such as ISAM. There is one area where there isn’t a gap in regulations, but rather a substantial and sometimes inconsistent overlap in agency regulation. It regards orbital debris and pollution to the space environment. Orbital debris is a problem and requires a certain level of regulation in order to preserve the “commons” of space. I’ve written about it before and have supported efforts to establish a regulatory regime for orbital debris.²⁶⁹ Much of the commentary related to orbital debris, including some of the visuals,²⁷⁰ however, convey a picture of low Earth orbit (LEO) as a heavily congested freeway where satellites are constantly dodging each other and catastrophic pileups are only a few seconds away.²⁷¹ Even with the advent of large constellations of LEO satellites, there is still a lot of space in outer space.

Space is big, there can be no doubt of that. For instance, the total area of the 800-kilometer orbital sphere encompasses 664 million square kilometers (or 411 million square miles) of area. Were the approximately 1000 currently operating satellites all bunched in this one orbit (which they obviously are not), each would have some 664,000 square kilometers (411,000 square miles) in which to operate.²⁷²

Granted, I wrote this in 2013, and since then more than 2000 additional satellites have been launched into LEO. But even accounting for this increase, each satellite today has over 200,000 square kilometers (158,000 square miles) in which to operate.

The problem, of course, is that travelling at speeds in excess of 17,000 mph, collisions in space can be catastrophic, resulting in many thousands of new pieces of debris. The “jumps” in orbital debris have resulted from a very few collisions, one of which was done on purpose.²⁷³ The larger red circle in figure 2 represents new debris caused by the 2007 Chinese anti-satellite (“ASAT”) test, in which China purposefully destroyed its Fengyun-1C weather satellite. The total debris cloud created by the ASAT explosion is estimated to be between 2,392 and 3,000 trackable pieces of debris. One estimate of the total debris produced exceeds 100,000 pieces. The second red circle represents the increase in debris caused by the 2009 collision between an arguably controllable Iridium 33 satellite and the derelict Cosmos 2251 satellite. This collision produced over 2,200 pieces of trackable debris.²⁷⁴

Figure 2. Growth of orbital debris objects over time by object type

Notwithstanding this threat to the future use of space, and especially certain LEO orbits, Congress has not provided specific regulatory authority to any agency when it comes to orbital debris. This hasn’t stopped multiple agencies from promulgating rules related to orbital debris, including:

The problem with having all these regulations (and guidelines) issued by different agencies is that they are not completely parallel—some of the requirements can be different as the agencies themselves. This results in applicants, especially those that need multiple licenses (e.g., a NOAA remote sensing license, an FAA payload license, and an FCC frequency license for the same satellite), finding themselves having to file different orbital debris mitigation filings with these agencies. If any agency disagrees with those filings the applicant would have to amend the filings made to other agencies as they wind their way through the licensing labyrinth. Again, none of these regulations were issued pursuant to explicit congressional statute. They are the result of each agency determining that such regulations are within its “public interest” or other broad authority.

The lack of clear congressional regulatory authority has allowed some parties to push agencies into rendering decisions, or even addressing issues, over which they have no authority or expertise. For example, satellite operator ViaSat, with the help of a group known as “The Balance Group,” challenged the FCC’s grant of authority to SpaceX to modify the orbit of its Starlink satellites on the grounds that the FCC had failed to comply with the National Environmental Policy Act (NEPA) by not conducting a full environment assessment of this change in orbit. The D.C. Circuit ultimately rejected these claims, including finding that The Balance Group lacked standing.²⁸⁰ TechFreedom filed an amicus brief in the case, arguing that NEPA does not apply to outer space.²⁸¹ Although there was lively debate at oral argument on the issue of the applicability of NEPA to outer space,²⁸² ultimately the Court did not have to reach that issue, concluding that the FCC had properly addressed issues related to the environmental concerns raised in the case.²⁸³ But so long as Congress remains silent on who should regulate orbital debris, agencies and private litigants will push for solutions that may ultimately serve neither the needs of the American people nor the international space community.

VIII. Is There a Path Forward to a Rational Regulatory Environment for Commercial Space?

Gaps and overlaps. Stovepipes. Inconsistent and redundant regulations. That’s the current state of the regulatory environment for commercial space operations faced with trying to become licensed in the United States. Each regulation has a cost (both on agencies and applicants) that has long been noted,²⁸⁴ and inconsistent regulations can drive those costs up exponentially. Most important for this discussion is the fact that, because of the inherently international nature of space operations, commercial entities will seek out jurisdictions for licensing that afford the quickest and cheapest path to close a business case, even if those licenses come from jurisdictions that have not become signatories to the key international treaties or otherwise lack any real regulatory oversight system or expertise in space operations.²⁸⁵

What is the path forward for creating a more rational regulatory system? First, notwithstanding the National Space Council’s call for agencies to reform their regulatory regimes,²⁸⁶ after the Supreme Court decision in West Virginia v. EPA,²⁸⁷ reform efforts must come from Congress, with clear statutory authority provided to the relevant agencies and hopefully, guardrails to keep agencies from promulgating inconsistent or redundant regulations. In crafting such a “Space Regulatory Act,” Congress should comprehensively address these issues, assign regulatory authority where it is needed, but also limit those regulations as much as possible. The specific issues that need to be addressed in this legislation, introduced above, are:

What should the FAA’s regulatory responsibilities be (launch, reentry, payloads, other operations)?
What is the overall role of the Department of Commerce?
- Should Commerce or FAA be in charge of space traffic management (STM)?
- If Commerce handles STM, how can outer space and national air space be integrated?
What is the role of the FCC in space? Is it limited to allocating and licensing frequencies or does the “public interest” standard imply more regulatory authority than that?²⁸⁸
What agency should promulgate rules related to orbital debris, and should this power be exclusive (i.e., other federal agencies should defer to the lead agency)?
In instances where interagency coordination is necessary, what measures should be instituted to force transparency (with due regard to national security interests), ensure timely resolution, and remove “black box” vetoes without accountability?
What agency, if any, should “authorize” and “supervise” space activities that fall outside the traditional norms of telecommunications, launch, and/or remote sensing? Is there a role for “permissionless innovation” in outer space?
What role is there in a comprehensive regulatory regime for non-governmental standard setting organizations? As other types of technologies have developed, the United States has looked to such organizations that have significant technical expertise, in many instances far more expertise than any agency might possess.²⁸⁹

As I said at the outset, drafting a comprehensive U.S. Space Act is beyond the scope of this paper. This discussion nonetheless should provide guidance to Congress in such a drafting exercise.

Conclusion

Undertaking comprehensive legislation to overhaul the space regulatory systems is no small task. The failure of Congress to comprehensively address these issues is also a creature of the fact that jurisdiction over space is spread out among several congressional committees, making a whole-of-government approach to regulatory reform that much more difficult. Given what is at stake in terms of American leadership in space and promoting the United States as the “go to” jurisdiction for space authorization, however, Congress needs to move quickly to tackle these complex and intertwined issues. Failure to do so leaves the United States vulnerable—vulnerable to other jurisdictions that will happily authorize U.S. companies to conduct space activities under their watch (for a fee and/or tax revenues, of course); vulnerable to adversaries who can dictate the actions of their private actors through other legal and political means; and vulnerable to those who wish to handicap the United States and other free-market countries by removing the profit incentive to develop the vast resources of outer space for the benefit of all humans. The stakes are that large.

Regulating Outer Space: Of Gaps, Overlaps, and Stovepipes

Executive Summary

Resources

Focuses

House/Senate Committees

Federal Agencies

Introduction

I. The State of Space Activity

II. Why the Regulatory Environment Is Critical to Winning the New Space Race

III. The International Regulatory Framework

IV. Calls for Regulation

A. Calls to Protect Space from the Evils of Capitalism

B. Calls to Fill the Perceived Gaps in U.S. Regulations

V. The U.S. Regulatory Environment and Limits to Agency Rulemaking Authority

A. The Impact of West Virginia v. EPA—Modest Words Alone Do Not Create Regulatory Authority

B. The Difference between “Substantive” and “Procedural” Regulatory Authority

VI. An Agency-by-Agency Review of Space Regulatory Authority

A. The White House National Space Council—What Is Its Regulatory Role?

B. The FCC—Keeper of the Frequencies

1. Regulatory Authority

2. FCC Enforcement Authority

C. The FAA—Thou Shalt Not Launch (or Reenter) without a License

1. FAA Regulatory Authority over Launch and Reentry

2. FAA Enforcement Authority over Launch and Reentry Activities

D. The Department of Commerce—Still Adrift after All These Years

1. Commerce’s Regulatory Authority over Space Activities

2. Commerce’s Enforcement Authority

E. NOAA—Look, but Don’t Tell

1. NOAA’s Regulatory Authority

2. NOAA’s Enforcement Authority over Remote Sensing

F. NASA—Experts in Science and Engineering but without Regulatory Expertise

1. NASA’s Regulatory Authority

2. NASA’s Enforcement Authority

G. Department of Defense and the Space Force—Keepers of National Security

1. DoD’s Regulatory Authority

2. DoD’s Enforcement Authority

VII. Orbital Debris—Everything Wrong with Space Regulation

VIII. Is There a Path Forward to a Rational Regulatory Environment for Commercial Space?

Conclusion

Executive Summary

Resources

Cited by

Related Publications

Related News

Related Blogs

Focuses

House/Senate Committees

Federal Agencies

Introduction

I. The State of Space Activity

II. Why the Regulatory Environment Is Critical to Winning the New Space Race

III. The International Regulatory Framework

IV. Calls for Regulation

A. Calls to Protect Space from the Evils of Capitalism

B. Calls to Fill the Perceived Gaps in U.S. Regulations

V. The U.S. Regulatory Environment and Limits to Agency Rulemaking Authority

A. The Impact of West Virginia v. EPA—Modest Words Alone Do Not Create Regulatory Authority

B. The Difference between “Substantive” and “Procedural” Regulatory Authority

VI. An Agency-by-Agency Review of Space Regulatory Authority

A. The White House National Space Council—What Is Its Regulatory Role?

B. The FCC—Keeper of the Frequencies

1. Regulatory Authority

2. FCC Enforcement Authority

C. The FAA—Thou Shalt Not Launch (or Reenter) without a License

1. FAA Regulatory Authority over Launch and Reentry

2. FAA Enforcement Authority over Launch and Reentry Activities

D. The Department of Commerce—Still Adrift after All These Years

1. Commerce’s Regulatory Authority over Space Activities

2. Commerce’s Enforcement Authority

E. NOAA—Look, but Don’t Tell

1. NOAA’s Regulatory Authority

2. NOAA’s Enforcement Authority over Remote Sensing

F. NASA—Experts in Science and Engineering but without Regulatory Expertise

1. NASA’s Regulatory Authority

2. NASA’s Enforcement Authority

G. Department of Defense and the Space Force—Keepers of National Security

1. DoD’s Regulatory Authority

2. DoD’s Enforcement Authority

VII. Orbital Debris—Everything Wrong with Space Regulation

VIII. Is There a Path Forward to a Rational Regulatory Environment for Commercial Space?

Conclusion