By Connor Haffey – June 2024

The Office of Space Commerce (OSC) has made a major push in the past decade to become more relevant in the commercial space industry. OSC’s statutory purview was never regulatory, as such, it only had a budget of $500,000 in 2016. However, OSC acquired NOAA’s remote sensing licensing responsibility when it merged with the Office of Commercial Remote Sensing Regulatory Affairs (CRSRA) in 2021 and its budget has grown exponentially since then. While it may seem the Office of Space Commerce is well-suited for mission authorization because of its fitting name, its track record says otherwise compared to the FCC. The OSC is an inexperienced regulator, has not finished developing TRaCSS, and would add another agency from which all commercial space mission operators would have to get authorization.

The certification process set out in the CSA is fairly straightforward and superficial in regards to a proposed mission itself. The certification process could easily be an addendum to the FCC’s licensing process for communicative space stations, which would decrease burden on applicants who need not otherwise deal with OSC (besides for a TRaCSS analysis once it is functional). Sticking with the FCC would also mitigate risks of overlapping issues from more technical regulations, such as the FCC’s recent in-space servicing, assembly, and manufacturing (ISAM) Notice of Proposed Rulemaking (NPRM).

The FCC already reviews nearly every commercial space object launched into space because nearly all need to communicate either in space or between Earth and space. The only ones the FCC does not review are those payloads that do not use communications, which raises a question in itself of how can a State continue its supervision of a space object if it cannot communicate with the object. While such a thought is outside the scope of this blog, an example of a noncommunicative space object was the recent controversial payload of human remains that Celestis intended to launch to the Moon.

Centralizing the authorization or certification process into an agency that will already likely be reviewing the application would decrease the regulatory burden on the applicant more than having that process with the OSC. Many space objects are not intended to conduct remote sensing thus the OSC would not see those applicants except for the certification process. However, with the CSA, applicant’s that would not need an approval from OSC now would need an approval. Even more, since the FCC also handles orbital location, it could coordinate with the OSC for TRaCSS analyses based on the entity’s application with the FCC, much like the FCC already coordinates with NTIA for any risks to government spectrum usage.

The FCC will continue to review nearly every commercial space object launched into space, including novel technologies. The FCC is already ahead of the curve because it has been forced to license and begin rulemaking for ISAM missions that don’t want to wait for legislative action. ISAM operations are probably the only novel space missions that are near to a true market in themselves (rather than just a few companies) and have aspects that likely to fall outside the realm of the current regulatory framework. The other foreseeable activities—such as lunar and deep space communications, in-space resource utilization (ISRU), orbital habitats, and optical communications outside the radio frequency spectrum–are still in developmental stages and unlikely to be an issue in the near-term.

The FCC’s ISAM NPRM lays out a path to authorize ISAM missions in a manner that takes into account industry input and would render those missions “authorized” for purposes of OST’s Article VI. For now, the ISAM NPRM can serve as an authorizing stopgap for its market. When ISRU or orbital habitats develop into their own markets, legislative action or a corresponding agency can take the reins to properly authorize those missions. For example, orbital habitats are essentially ISAM operations with humans on board. The FAA is already tasked with human safety in space and will likely promulgate its own regulations once the “learning period” ends.

The CSA threatens to constrict future technical rulemakings that will be necessary for the developing technologies that spur growth in the commercial space industry. This could cause legal uncertainty in the future. There is no need to cover a regulatory gap formed from a patchwork regulatory framework with a blanket certification process that is ex ante to most of the missions the process is intended to address. If that certification process is deemed necessary, why force industry applicants to add another agency to their already long list of approvals?

While the intentions of the White House and Representatives Babin and Lucas are commendable, their attempt at oversimplification may very well wind up adding more complexity to the problem in the long-term. Outer space is free for the exploration and use of all States, a right which the US has also granted its citizens. The FCC has been a champion for public interest, space technology innovation, regulatory efficiency, and space sustainability for decades. While the FCC’s name doesn’t scream “commercial space mission authorization,” its suitability and preparedness for mission authorization, especially in light of the ISAM NPRM, makes it the best candidate for authorizing novel space missions, if not for every technology, at least for the most near-market ones for now.

Pin It on Pinterest