05.17.2018 Push in Washington to Help U.S. Companies Compete in New Space By: Kevin D. Pomfret

Advancements in technology, such as small satellites (commonly known as “smallsats”) and re-usable launch vehicles, have increased the commercial opportunities in space, commonly referred to as “New Space.” These space-related activities, including communications, remote sensing, satellite repair and mineral extraction from asteroids, could have significant economic and national security implications.

The American Space Commerce Act (the “Act”) recently passed by the House of Representatives is intended to make it much easier for U.S. companies looking to conduct commercial operations in space and reflects continued efforts in Washington to make the U.S. a leader in New Space. However, significant issues still must be resolved before the benefits of these efforts are achieved, due to the complexities involved in space-related activities.

The stated purposes of the Act are to (i) provide greater transparency, greater efficiency, and less administrative burden for U.S. companies seeking to conduct space activities; and (ii) “to ensure that the United States remains the world leader in commercial space activities.”  The Act sets forth several steps to reach these objectives, including raising the profile of the Office of Space Commerce (OSC) within the Department of Commerce and giving OSC greater regulatory authority. For example, OSC would be responsible for issuing space-related permits and licenses, other than those related to launch and re-entry – which would continue to be the responsibility of the Federal Aviation Administration (FAA) - and spectrum, which would continue to be regulated by the Federal Communication Commission (FCC).

The Act would also simplify the approval process of a wide range of space activities, particularly in obtaining a license to operate a commercial satellite remote sensing system. For example, the application process would be streamlined, and an application would be automatically approved if no action is taken within 90 days, subject to a one-time Presidential extension of 60 days in the event of serious national security concerns.  Current regulations state that a decision must be made within 120 days; however, in practice the process often takes much longer, due in part to perceived national security concerns associated with satellite imagery.

The Act is aligned with similar efforts in Washington to facilitate commercial space activities for U.S. businesses. For example, the week before the House vote, Vice President Pence, speaking before the annual Space Symposium, highlighted the importance of space to the United States and discussed some measures that the National Space Council – based out of his office – is considering. These measures include the transfer of some Space Traffic Management (STM) responsibilities from the Department of Defense to the Commerce Department. (STM will become increasingly important as the substantial number of satellites that are expected in space in the coming years will increase the risk of collisions and orbital debris.) Later that week, Secretary of Commerce Ross, speaking at the same conference, reiterated his office’s plans to implement the initiatives outlined by Vice President Pence. These efforts include creating a “one-stop shop” at the Office of Space Commerce that would report directly to him and also would include the Commercial Remote Sensing Regulatory Affairs (CRSRA) office, currently housed in the National Oceanic and Atmospheric Administration (NOAA).

The emergence of these New Space actors, and their business models, are challenging the existing legal and policy framework in the U.S. For example, in January several smallsats reportedly were launched into orbit even though the FCC had denied the owner a permit because the satellites were too small to be tracked and there was no mitigation plan to address collision concerns. In March, SpaceX was required to halt a webcast of images of its launch taken by a camera mounted on its rocket because the camera would collect images of earth and the company had not received a license from CRSRA.

One of the reasons the government must play an important role in commercial space activities is that the U.S. is a signatory to the Outer Space Treaty (OST). The OST provides in part that a country is responsible for what its actors, including businesses, do in space. Efforts to create a “one-stop shop” for space-related activities should make it easier for both traditional and New Space actors. However, given the nature of space-related activities, other government agencies will continue to play important roles.