FCC Seen Likely to Back-Burner Orbital Debris Proceeding, Per Commerce Ask
The FCC, asked by the Commerce Department to pause its orbital debris proceeding (see 1904080033), is expected to comply. With Commerce also talking about interagency discussions on one federal authority for all things orbital debris related, some experts said single-agency oversight makes sense.
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"That's not an unreasonable request," since the FCC going it alone could potentially end up contradicting or overlapping with other federal agencies' policies, said Space Law and Policy Solutions principal Michael Listner. The agencies didn't comment Thursday.
An FCC official said there haven't been eighth-floor discussions about the NPRM, and the agency is surely reviewing what was filed, including Commerce's comments. Since the rulemaking was approved in November (see 1811150028) included questions about the agency's authority over space debris issues that weren't in the original draft, that seems to signal the FCC will do what Commerce suggested, the official said. That language supposedly came after pressure from Commerce.
Commissioners already likely had questions about FCC jurisdiction over orbital debris, as indicated by issues Brendan Carr raised at the November meeting, a satellite executive said. The International Bureau probably felt space debris was an issue needing to be addressed but didn't know what was happening at other agencies, he said. The industry is going to be more interested governmentwide coordination of space debris rules and avoiding overlapping or contradictory rules regimes than in rules being crafted quickly, he said.
Several companies also raised the FCC jurisdictional issue in comments to the agency. "We have several concerns with the Commission’s role in orbital debris mitigation as a regulator," including lack of sufficient in-house expertise and "concern within the satellite community" about whether it has the proper jurisdiction to lead on orbital debris mitigation regulation, said startups Astroscale, Altus Space Machines, Nanoracks, OrbitFab, Roccor, SpaceBridge Logistics, Space Exploration Engineering and SpaceNav in docket 18-313. SpaceX said with the federal government building on the space traffic management policy the White House laid out in 2018 (see 1806180028), the FCC is right to potentially "reconsider its authority and how its licensing actions interact with efforts at other agencies."
A satellite lawyer said it wouldn't make sense to not go about this in an intra-agency context, and the FCC perhaps should have tried first to start a multiagency collaboration. The lawyer said that commenters raised the idea of intra-agency cooperation puts more pressure on the FCC to not go it alone with its rulemaking.
Having one agency handling debris issues "might make considerable sense," emailed University of Nebraska space law professor Frans von der Dunk. Other nations typically have one overarching law addressing all kinds of space activities, while the U.S. fragmented regulatory/licensing approach divided among the FCC, FAA, NOAA and NASA "clearly has its drawbacks in terms of a coherent space debris policy," he said. The FCC's using its payload review competence -- originally meant to ensure satcom operations would have some public benefit -- "was a bit of a competence creep, framing the 'benefit of the U.S. people’ as including not being potentially threatened by sloppy satcom operations," he said. It was "caused by the absence of more substantive regulatory authority to address on-orbit operations."
Facing the likelihood of such nontraditional space operations as private space stations and space mining, the U.S. has been debating what agency should handle on-orbit operations of U.S. operators. Lumping in debris oversight with that might make sense, von der Dunk said.
The way the FCC goes about orbital debris regulation now "is a mistake," and requires wholesale change, with an independent outside body evaluating applications, said Moriba Jah, University of Texas-Austin associate professor of aerospace engineering. That panel needs to be made up of experts representing stakeholders, including industry and academia representatives, and it would sign off on whether a license should be granted, Jah said. That approach needs to happen even if Commerce or some other agency becomes space debris czar, he said.