Legislative Update
Amendments to the Federal Communications Commission Non-Geostationary Orbit Licensing Regime
Eight years after the SPACE act, the commercial space industry has been bustling in the United States. While there is yet to be a genuinely commercial use of outer space (although star link and Nanotracks are getting pretty close to it), incentivizing growth in the commercial industry still requires the mitigation of legal uncertainty. Issues regarding the commercial uses of outer space arise when it comes to national security and licensing. In response to some of these pressures, Congress has introduced two bills with bipartisan support to amend the FCCs NGSO listening regime. The bills seek to accomplish two main goals, (1) incentivizing more completion and (2) bolstering national security. The bills seek to accomplish these goals by providing a streamlined process for acquiring an operator license and barring specified entities from acquiring operator licenses. The bills also oblige the FCC to adopt specific rules regarding harmful inference and mitigation of orbital debris.
The FCC NGSO licensing regime
All satellites used in commercial operations require a license to operate by the FCC. The reasoning is that there can be a centralized decision-maker concerning radio frequency allocation to ensure that commercial space assets harmfully interfere with each other. There is a different regime for satellites in geostationary orbit and non-geostationary orbit. On paper, this is where most of the end of the licensing distinction, so part of the FCC's efforts is to diversify licensing regimes further. Recently, the FCC has offered a streamlined process for licensing microsites, or cube sets via rulemaking, which allows operators to obtain one license for as many as ten space objects. This rule is part of the FCC's effort to establish different licensing regimes for satellites used in constellations and ones for singular satellites. The present legislation seeks to streamline further licensing requirements for satellites not utilized in a constellation. (F
Satellite and Telecommunications Streamlining Act
This Act imposes several obligations on the FCC regarding their NGSO licensing regime. First, it obliges the FCC to abide by a specific time frame regarding application processing. It also imposes that the FCC consider specific criteria in the public interest and obliges the FCC to adopt new rules regarding orbital debris and other technical aspects of licensure.
Application Processing
The Act creates a duty on the FAA to abide by a specified timeframe for new applicants. Mainly the FCC must give an initial response within one year. It also specifies timeframes for other procedures, like when the authorization is modified and when license renewal occurs. There is also a carve-out of emergencies, such cases instances of national emergency.
Public interest criteria
Part of the FCC's function is to snore that radio communication assets do not interfere with other space objects. The public criteria are four-fold: The space object cannot cause harmful interference, diminish the efficiency of spectrum use, adversely affect competition, or disrupt services to the "largest economically feasible number of users."
Adopt new rules for orbital debris
The Act also obliges the FCC to adopt new rules concerning the mitigation of orbital debris generation. Socially, the Act serves as Congress's way of telling the FCC to adopt a set of standards that compel applicants to show the propensity for their object to generate sake debris and draw a line for what is unacceptable.
Secure Space Act
Another Bipartisan bill also seeks to Amend the FCC licensing requirements to exclude foreign operators of certain telecommunications services. The bill would prevent the FCC from granting a license to an operator of "any Covered Telecommunications equipment or Services" as defined by the Federal Aviation Regulations.(Error! Hyperlink reference not valid. Covered Telecommunications equipment means telecommunications technology owned or controlled by China and certain Chinese companies but implicitly also prevents any entity the Secretary of defense or the FBI deems connected to the Chinese government. (Discussion Draft of Secure Space Act).
The point of the legislation is to maintain American presence in the Commercial satellite communication market and counter the effects of Chinese presence in outer space. (House Committee on energy and Commerce). Primarily the concern is rooted in preventing unwanted foreign surveillance by preventing such interests from acquiring a listen from the FCC to operate. The legislation also has another effect in line with pursuing commercial space growth by limiting the amount of competition that may enter their marketplace.
Discussion
Congress is serving two interests, one on national security footing and the other for commercial space growth. The bills also seek to address the United States' challenges regarding the proliferation of commercial entities in outer space. There is also an impact on international law that may become relevant to developing the principles in the international outer space treaties.
Addressing present challenges
The overt intent of the legislation is to create a streamlined process for American satellite operators seeking a license from the FCC. The rationale is that streamlining regulatory processes will ensure the United States remains globally competitive in the satellite communication service market. The legislation itself could reflect the recognition that other spec faring countries, like China, are becoming increasingly formidable when it comes to outer space exploitation. (Air Force Magazine) Whether the streamlined regulatory prices accomplish, this goal remains to be seen. Other unforeseen factors may be outside of burdensome regulation; theta may tip economic dominance in outer space away from American favor.
On the other hand, lowering the bar to licensing may create too much commercial interest and lead to excessive satellite production and deployment. Too many satellites in orbit increase the risk of space collisions and debris generations and pose international liability issues for the United States. Legislators must strike a delicate balance regarding incentivizing the commercial space industry to be globally competitive while also maintaining appropriate practices about outer space activity. One can envision where one country's desperate attempt to compete in the commercial space sector manifests as raising the collision probability threshold as a precondition to licensing. A race to the bottom type of scenario in outer space would be detrimental to humanity.
All proposals for incentivizing growth in the space sector are against national security interests, which are increasingly reliant on space-based assets. In addition, there is a fear in the national security circle that telecommunications utilized by certain entities could lead to malicious uses by foreign actors. As telecommunications become increasingly sophisticated, telecommunication service providers can extract more and more data on individuals. Data collection is common practice in high technology industries, so the fear is that certain entities may use such data for malicious purposes. The security interest is in response to advancing Chinese space technology. The bill prevents particular Chinese interests from obtaining a license from the FCC. Presently China remains the United States' biggest challenger regarding the use of outer space, and relations between the two space programs are incredibly closed. Federal law still prevents NASA from cooperating with entities associated with the Chinese space program for fear that such cooperation would transfer critical technology.
Impact on international law
Unlike national law, international law is comparatively slow to develop. Both bills together appear to serve as an attempt by US legislators to bridge the gap between federal space law and international space law in some ways. The Satellite communication streamlining Act obliges the FCC to adopt rules regarding space debris generation. If the FCC truly wanted to appease the international community, there could be an opportunity to adopt the same guidelines as COPUOUS and even improve upon them. The interesting question is what happens if the FCC adopts rules that do not conform to COPUOUS guidelines. This would put the United States reasonably awkward position as a COPUOUS member. (Mitigation Guidelines).
Per the Outer Space Treaty, The United States is also under an international obligation to "consensually authorize and supervise." The only unambiguous term in the obligation is the word "and." One would think this requirement is straightforward, but in practice, there is no binding definition for what precisely constitutes "continuous," "authorized," or "supervised." States usually have different national rules for authorization and supervision, but how does that duty go in international responsibility. (The Outer Space Treaty, Art VI).
Another issue that may arise in the international setting also concerns the Outer Space Treaty. The utter Space Treaty dedicates many languages to the idea that all countries should freely use outer space, irrespective of economic development. So, the United States, by preventing specific the Chinese government and state-owned government enterprises of China, the United States would appear to be infringing on the freedom of use principle. However, this violation is justified considering the national security concern, and international law permits countries to act in their legitimate national security interests. On the other hand, it could also be argued that freedom of use would not apply to commercial interests, as commercial interests do not provide freely useable services.
In conclusion, the state of international law complements the requirements Congress is pacing on the FCC. The international rule regarding the issues appears to favor the United States. The issues concerning the freedom of use principle are too indeterminable, but that is also the point of international law, to allow the practices of countries to determine what the rule is.