I read John Varley in my teens. I had a subscription to Analog, or, Galaxy, it might have been; and Varley’s short stories showed up there regularly. He was really close to Heinlein in my pantheon of favorite authors. I read The Ophiuchi Hotline when it came out, and waited eagerly for Titan and its sequels.
I grew up, I went to law school, I worked for a law firm. I changed jobs and became a space lawyer for the Federal Aviation Administration and worked on commercial space transportation issues under the Commercial Space Launch Act (CSLA). (Of course, none of the views expressed here represent those of my former employer, especially the stuff about John Varley). So, about a decade ago, when I saw Red Thunder, a really fun book about a group of young people with a secret space engine trying to get to Mars before anyone else, I was very happy to pick it up.
Reading it was just heaven, until it got to a certain point: the point where our heroes agreed amongst themselves they didn’t need much in the way of regulatory approvals, aside from getting clearance from the FAA’s Air Traffic (which, if I recall correctly, everything being secret and all, I don’t think they bothered with, but I may be wrong). But, and here’s the sad part, the characters made no mention of FAA launch licensing.
How could John Varley have let me down like this? He could talk about Air Traffic control, but not about the licensing requirements of the Commercial Space Launch Act? What was wrong with him? Did science fiction writers have no regard for the law? Michael Flynn knew about the CSLA, and its administrators showed up as petty bureaucrats in Firestar. That was cool. He was up to snuff. But John Varley?
Anyway, I struggled to move on, and mostly did, but years have gone by and I remain troubled and still seek catharsis. My emotional issues might provide a good opportunity to go over the three space regulators in the U.S., so that other science fiction writers don’t cause other space lawyers similar heartache. The regulators are, in alphabetical order, the Federal Aviation Administration, the Federal Communications Commission and the National Oceanic and Atmospheric Administration in the Department of Commerce. The FAA regulates launch and reentry, the FCC transmissions from satellites into the United States, and NOAA remote sensing. If one were writing science fiction (ahem, Mr. Varley), these agencies could serve as obvious obstacles–if not outright villains–when plotting space adventure. Alternatively, they could be good vehicles for keeping everyone in their place.
So what does each agency do? The FAA authorizes and regulates the launch and reentry of launch and reentry vehicles, including reusable launch vehicles, under Title 51, United States Code, (USC) chapter 509 (popularly referred to, by everyone except Mr. Varley, as the Commercial Space Launch Act because that was its original name, but isn’t anymore. See here). Chapter 509, aka CSLA, is a different law than the one applied to aviation. The FAA licenses expendable launch vehicles such as the Atlas and Delta. The FAA licensed the launch and reentry of SpaceShipOne, which won the X Prize. And it licenses SpaceX’s launch and reentry of Dragon, which carries cargo to the International Space Station. The FAA also authorizes and regulates launch and reentry sites, popularly referred to as spaceports–for which phrase Heinlein regularly gets the credit.
You might think that if the FAA regulates launch and reentry, it also regulates transportation on orbit. It does not. When Congress granted the FAA authority over reentry in the late 90’s, Congress was very explicit in the legislative history that it was not granting the FAA authority on orbit. This has led to many interesting discussions about how you know when a launch is over, and whether traveling all the way to Mars constitutes launching, but the latter is a hypothetical matter only, of course. It’s a hypothetical matter that Mr. Varley didn’t even try to address, but let’s put that behind us, shall we?
The FCC regulates transmissions under the Communications Act of 1934, which may be found at 47 USC § 151 et seq. For satellites, the FCC has rules about the satellite’s location, interference with other satellites, and orbital debris. The debris rulemaking is especially interesting
NOAA addresses imaging of the Earth’s surface via remote sensing satellites. Anyone who engages in such activities needs a license. NOAA also addresses issues regarding debris similar to those of the FCC. NOAA gets its authority from the National and Commercial Space Programs Act of 2010, Title 51, USC, Subtitle VI. You can find NOAA’s regulations at Title 15, CFR part 960. See here for both.
Before we leave domestic territory, let’s take a quick look at the administrative state and its utility as a science fiction research tool. When an agency issues its regulations, it first issues a proposal for public comment, which it publishes in the Federal Register. The proposal explains what the agency intends to do and why, and is a good source of interesting detail on issues. When the regulations become effective, the agency again issues a notice, this time explaining how it responds to the comments it received from the regulated industry and the rest of the public.
Regulations are useful for a writer because you can mine them for any number of things: technical details; tortured bureaucratic language ripe for lending verisimilitude to a character; or the penalty processes for when your main character gets in trouble or is, alternatively, enforcing the law against miscreants or other malefactors. Me, I used a provision in 14 CFR part 417, which applies to the destruct system on a rocket, as the basis for a scene about check tones on a solar power satellite in The Sky Suspended. I was a philosophy major: I need all the help I can get.
Finally, the Outer Space Treaties. The biggie is the Outer Space Treaty itself, where a U.S. president asked a Supreme Court Justice to go negotiate it for him. And quickly. It was ratified in 1967 and almost exclusively concerns itself with the activities of governments in outer space. There are, however, provisions that may be of interest to anyone writing about the activities of commercial people.
If a science fiction writer wanted barriers to homesteading, many argue that the Outer Space Treaty bars private appropriation of extraterrestrial territory. Article II says that “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” I know of no court that has adjudicated the meaning of this language. You can find a very interesting discussion of the topic here. The Guano Island Act may also offer a source of amusement, as well as some rather strange arguments. Finally, after a Chinese landing of a rover, Professor Glenn Reynolds offered some interesting observations.
Article VI of the Outer Space Treaty says that the countries signing the treaties “shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the [Outer Space Treaty].” Certain folks have taken this to mean that because a country can’t appropriate extraterrestrial territory none of its citizens can either. I don’t agree, but that’s a topic for another day.