By Connor Haffey – May 2024
The US commercial space industry is growing rampantly – with no slowing in sight. The missions identified in the Section 108 Report that might have aspects outside the current US commercial space mission authorization framework are growing ever nearer, but that does not necessarily mean they are here. With more objects being launched into space, sustainable space behaviors, including proper authorization of missions, are also growing more important.
The two proposals for authorizing novel commercial space missions were both presented in the last two months of 2023. One from the White House, a draft bill coming as a supplement to the White House’s Novel Space Activities Authorization Framework, which splits authorization between the FAA and the DOT—or more specifically, the Office of Space Commerce (OSC) within the DOT. The other is an introduced bill from Representative Babin [R-TX] and cosponsored by Representative Lucas [R-OK], titled the Commercial Space Act of 2023 (CSA), which creates a certification process that the OSC would implement as the authorizing agency.
While these drafts bills were proposed within the same month, similar to the Section 108 Report draft bill language and the ASRA, the CSA, thus far, seems to have garnered more industry support than the White House Draft bill. Much of that support is due to the CSA’s straightforwardness, whereas the White House Draft Bill includes ambiguous definitions and overlapping grants of power.
This piece won’t delve too deep into the specifics of the CSA in particular, considering a companion ISLE Fellow already parsed out the details of that draft bill in a previous blog. Instead, this blog briefly dissects the two bills and bridges into Part III of this blog series by asking why the FCC was absent from both draft bills, and how that absence could lead to a missed opportunity.
The White House Draft bill consists mostly of definitional changes and supposed clarifications that require their own clarifications, whereas the CSA is more all-encompassing by directing development and implementation of a new process for authorization via “certification.” Obtaining a certificate would be required for every space object operator commencing operations after enactment of the CSA, regardless of the operator’s other regulatory license obligations. The purposes for the CSA, outlined in the introduced legislation, can be summed up by stating the CSA aims to alleviate legal uncertainty, minimize regulatory burdens and costs, and maintain innovation. The certification process set out in the CSA is fairly superficial, with a data analysis from the OSC’s space situational awareness system, called Traffic Coordination System for Space (TRaCSS)—which is still under development—and attestations explicitly denying any operation of the space object that would violate express provisions of the Outer Space Treaty.
In contravention to the FCC’s recent “five year rule”—requiring non-geostationary orbit (NGSO) satellite applicants to provide a statement describing their plan to deorbit the satellite within five years upon termination of its operations—the CSA’s certification process only requires a debris mitigation plan that highlights how the disposal of the satellite will mitigate space debris. However, no temporal or technical parameters are necessary to support a CSA debris mitigation plan. This requirement also expressly prohibits any agency, other than the DOC, to impose a requirement to carry out a space debris mitigation plan for a space object certified under the CSA process. As such, enactment could effectively revert the industry back to when there was no time requirement for satellite disposal; a potential twenty year step backwards for space sustainability.
This foreclosure of the FCC’s five-year rule upon enactment of the CSA may be a hint as to why the draft bills do not include or broaden the FCC’s power; Congress and the White House have less control over the FCC than they do other agencies. The FCC is an independent agency with more autonomy than traditional executive agencies. Notably, the Commission does not rely on budget allocations from Congress, an important tool for keeping executive agencies in line with the wants of Congressional members. Another reason for ignoring the FCC’s significance in space might be their controversial use of the FCC’s ancillary jurisdiction in recent years, including with space. Here, however, the Commission is championing necessary space sustainability initiatives to which others are turning a blind eye. By overlooking (or ignoring) the FCC, do the draft bills neglect the efficacy of the FCC’s initiatives and promotion for space sustainability and ethical behavior in space? What are the downsides of promoting sustainable space behavior? Would it actually better serve the purposes of the CSA to designate the FCC as lead agency for space mission authorization? Part III of this blog series will argue in the affirmative to those questions.