Kings of the High Frontier vs NASA

Could NASA use the Federal Aviation Administration’s policy review to stop a launch?

One of the problems I have with reading near-space, near-future science fiction is all that poetic license.  A poet’s license is different than a launch license.  To get a launch license you have to show the FAA that you satisfy its safety, environmental, policy, payload, and financial responsibility requirements.  To get a poet’s license, as best as I can tell, you just grab it and take it.  John Varley may have broken my heart by failing to dis properly the FAA’s space law, but Victor Koman drove me crazy by getting really close and then twisting the law so hard I had to go look it up.

In Kings of the High Frontier, which was published in the 1990’s, Koman tells of an imaginary second Shuttle disaster leading to the rise of commercial companies to compete against the monolith that is NASA.  We follow the development of a host of different entrepreneurs, from students at NYU to billionaires, from space planes to rotary rockets, as they race to beat a treaty deadline which would place all space launch capability in the hands of the United Nations.  The Department of Defense doesn’t want the entrepreneurs to make it.  NASA doesn’t want the upstarts to show the agency up.  And, most malevolently of all, the architect of the new treaty and head of a space advocacy group who wants space to stay tidy and well-planned, even if it means human space travel is always thirty years away, doesn’t want them to succeed.  In short, this is the fictional companion—or precursor—to Greg Klerkx’s Lost in Space:  The Fall of NASA.

That’s all well and good and makes for a fine plot.  Additionally, Mr. Koman did a tremendous amount of research.  The first portion of the book lovingly geeks out over each rocket design and the secrecy in which the launch vehicles are constructed.  (I like to use launching from Central Park or Washington’s Mall as examples of launch sites that would obviously fail the FAA’s risk thresholds.  Little did I know the ways around that.)  He clearly did a tremendous amount of research on the legal aspects, too, although he deploys that poetic license to suggest the FAA has no role in regulating space transportation. In the 1990’s, when this book was published, the Department of Transportation, of which the FAA is a part, administered the Commercial Space Launch Act.  However, DOT delegated that authority to the FAA in 1995, and the Office of Commercial Space Transportation and its lawyers were all moved over to the FAA.  That’s a minor error and could probably come under the Alternate Future History exception to accuracy if it weren’t for the fact that the book portrays NASA as being in charge of regulatory oversight.

NASA is not.  In real life, no one needs a license from NASA to launch a launch vehicle.  NASA is an operator.  The FAA and a couple other agencies are the regulators of commercial space activity.  Nonetheless, Mr. Koman does recognize that DOT plays a role.  Because I’m always willing to turn to the Alternate Future History explanation, I started wondering how NASA would go about trying to stop a launch under current law if we set aside the errors about who the real regulators are.

Maybe NASA could use one of the FAA’s reviews.  Under 51 U.S.C. 50918 of the Commercial Space Launch Act, which is the law where Congress tells the FAA, through DOT, that it has the authority to regulate space launch and reentry and how the agency must go about it, the FAA must consult with the Department of Defense regarding matters of national security and with the Department of State regarding foreign policy and obligations. Both those agencies must notify the FAA of any issues they identify within their purview.  Congress also tells the FAA to consult with other agencies to ensure consistent application of licensing requirements, fair treatment of license applicants, and when it’s otherwise appropriate.  The FAA took these instructions and ran with them, issuing regulations for consultations for both policy and payload reviews.  The payload review applies to a launch vehicle’s payload, so it would have applied to only one of the entrepreneurs in the novel, and then only maybe.   Let’s focus instead on the policy review.

What powers does the policy review give the other agencies?  The FAA’s regulations, where the FAA implements the Congressional law, say that the FAA will issue a policy approval to a license applicant unless a proposed launch would jeopardize U.S. national security or foreign policy interests, or international obligations of the United States.  The regulations closely track the statute, but go a little further.  When it published the current version of the policy review, the FAA separated the policy from the payload review.  This means that the policy review applies to the launch itself.  So far, so good. Koman’s entrepreneurs didn’t have payloads.  They flew themselves.  Only the policy review would apply.

The FAA’s regulation says that the FAA consults with other agencies, including NASA, “authorized to address issues” of national security, foreign policy or international obligations.  In commenting on the proposed rule, Space Access said the FAA should not consult NASA on matters NASA does not address.  The FAA said that it would continue to consult with NASA because

NASA has a long history of launching expendable launch vehicles, and currently operates the Space Shuttle.  NASA also operates a federal launch range.  NASA procures launch services from the private sector for a wide range of satellites and space probes.  Also, NASA has programs and assets that it may wish to bring to the FAA’s attention in the context of a particular launch.

Is that last statement about protecting programs and assets the money quote for Mr. Koman?  It’s not in the FAA’s regulations, but it’s in the preamble to the rules, which is where the FAA explains its rationales.  Could NASA legally have stopped one of Koman’s launches on the grounds that competition was bad for NASA?  Probably not.  First, the statute and the rules require only that the FAA “consult” with these other agencies.  The other agencies do not get veto power.  They may only bring issues to the FAA’s attention.  Although the FAA is probably going to pay close attention if the DOD has a national security problem with a North Korean launch from California, the Commercial Space Launch Act charges the FAA with encouraging, facilitating and promoting  commercial space launch and reentry by the private sector.  This second obstacle is a powerful one, and should make it highly unlikely that the FAA would try to shut down anyone “competing”  with NASA through a policy review.  Finally, section 50918 of the Commercial Space Launch Act directs the FAA to consult with other agencies to ensure consistent application of licensing requirements, fair treatment of license applicants, and when it’s otherwise appropriate.  It would hardly count as fair treatment to shut down a launch operator on the grounds that it competed with NASA.

True, the possibility of consulting as “otherwise appropriate” appears to give the FAA untrammeled discretion to consult for any reason at all and thus to stop a launch.  There are two points in answer to that:  First, it does not give the agency with whom the FAA consults authority to stop a launch, and, second, the consulted agency’s response must still comply with the rest of the law, so NASA would have to identify one of the usual topics of the FAA’s proper concern, such as safety or national security.  So, no, the last statement is not the money quote.  It’s far more likely that the FAA is referring to NASA’s interest in protecting its property from the hazards created by a particular launch.

The long and the short of it is that Kings of the High Frontier probably constitutes Alternate Future History based on the legal issues.  (By the way, and not that this is a real book review, but I enjoyed the book, especially the second half.)

About the Book Tab:  I like science fiction.  I like space law.  Law school exams consist of complicated, hypothetical situations.  Hapless law students across the nation must identify the issues they present and figure out the legal ramifications.  Some science fiction novels offer similarly helpful hypothetical situations, and they are much more fun to read.  If you go to the Book Tab you will see various novels with space law implications.  Their presence in the Book Tab means that they have been analyzed somewhere on this blog unless they are mine.  The novels I wrote fall into two categories, space opera and bourgeois science fiction.  The space operas offer no legal issues.

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Opportunities for the President and Congress to Ensure that Regulatory Agencies Do Not Improperly Use the Outer Space Treaty to Deny Access to Space or Impose Burdensome Costs

There has been a lot of discussion in the past couple of years about whether and how the Outer Space Treaty applies to private companies such as lunar habitat operators and asteroid miners, and whether these private actors may be denied access to space until Congress passes a law authorizing them.  Additionally, there is continuing discussion over whether and how the federal government may apply NASA’s planetary protection policy to private actors in space.  As discussed on this blog and as I have testified, under the law the regulatory agencies may not deny private actors access to space or impose planetary protection on private actors.  What should be done when not everyone agrees?

Solutions are available. The President by Executive Order, or the Congress through legislation, could ensure that NASA, the State Department, and the regulatory agencies do not deny private operators access to space by attempting to enforce treaty provisions that do not apply and are not self-executing.  This could be done for both Article VI of the Treaty, which requires countries who signed the treaty to authorize and continuously supervise their “non-governmental entities,” and for Article IX’s mandate to avoid harmful contamination of celestial bodies.  Its “planetary protection policy” is how NASA avoids harmful contamination from its own activities.

Because neither of these parts of the Treaty are self-executing, and because they are thus not domestically enforceable federal law, the President could ensure that regulatory agencies such as the Federal Aviation Administration, the Federal Communications Commission, and the National Oceanic and Atmospheric Administration, as well as NASA and the State Department, do not deny access to space to private operators on the basis of Articles VI or IX.  An Executive Order is a perfect vehicle for ensuring that relevant portions of the government are reminded to comply with existing law.

Congress could follow a similar approach.  It could through legislation also direct the regulators that they may not deny or attempt to deny access to space on the basis of non-self-executing treaty provisions, including both Articles VI and the harmful contamination provisions of Article IX.

Authorization and Continuing Supervision.

The FAA’s press release about its 2016 favorable payload review of Moon Express’s operation of a spacecraft and lunar vehicle shows that the FAA is attempting to enforce Article VI against private actors, even without implementing legislation from Congress.  The FAA noted that Article VI requires authorization and supervision of the activities of non-governmental entities in outer space, and that the FAA consulted with and considered comments from the Department of State. With the State Department’s concurrence, the FAA announced that because it was able to enforce the representations that Moon Express made in its application for a payload review, this particular favorable payload determination complied with Article VI.

The FAA also made sure to note, however, that not all non-traditional missions would necessarily lend themselves to such a favorable outcome, and future missions may require Congress to grant the FAA additional authority “to ensure conformity with the Outer Space Treaty.” In other words, the FAA believes it has the legal ability or obligation to deny access to space to entities not authorized and continuously supervised under current law.

Article VI of the Outer Space Treaty states:

States Parties to the Treaty 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 provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

The United States itself is in compliance with Article VI because the treaty leaves the decisions about how to comply with its rather ambiguous terms to each country. By its own terms, Article VI legally does not and cannot prohibit space operations by the commercial sector.  Instead Article VI leaves it to each country to decide which particular activities require regulation, how that regulation will be carried out, and with how much supervision. Accordingly, if Congress hasn’t said that a certain activity, such as lunar harp playing, requires authorization and continuing supervision then lunar harp playing does not.

Additionally, because Article VI is not self-executing, and because the Supreme Court in Medellin ruled that non-self-executing treaties are not domestically enforceable federal law, the agencies may not enforce this treaty provision against the private sector.  Just as in Medellin where a President could not unilaterally impose a treaty obligation on the states, regulatory agencies should not attempt to impose treaty obligations on the private sector without Congressional action.   An Executive Order could ensure that the agencies abide by this.  So could Congress by legislation.

Planetary Protection.  The harmful contamination provisions of the Treaty also call out for clarification.  Although NASA and the State Department are not regulatory agencies, they could use the consultation process of the Federal Aviation Administration’s payload review to attempt to apply NASA’s planetary protection policy, and so should be included in the directives of any Executive Order or new law.  In order to prevent such attempts, an Executive Order or a new law could note that the bulk of the Outer Space Treaty’s requirements apply to “States Parties,” and the United States and its agencies should not improperly interpret those provisions as applying to the private sector.

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Effective Date for FCC Technical Rules for DBS and BSS Satellite Services

On August 8, 2017, the Federal Communications Commission published in the Federal Register a summary of a Third Report and Order from April 2017. The FCC intends the rules  to mitigate ground-path interference between the Digital Broadcasting Satellite Service and the Broadcasting Satellite Service in the 17.3–17.8 GHz band.  For the FCC, this allows it to create an effective date for its new rules.  The FCC adopts:

new rules to mitigate interference from DBS feeder-link earth stations to BSS consumer earth terminals (ground path interference) in the 17.3–17.8 GHz band.  We adopt a rule allowing currently-licensed DBS feeder link earth stations to continue operations under the terms of their current licenses, and to expand their facilities provided that new antennas are constructed within one kilometer of current antennas and the aggregate power-flux density of the station at any point does not increase.  We adopt a methodology for new DBS feeder-link earth stations, and require applicants for new DBS feeder-link earth stations to coordinate with BSS licensees to achieve agreement on interference mitigation. We adopt rules specifying the information applicants for new DBS feeder-link earth stations must provide for the purposes of coordination.

The full report and order is available here.

Effective Date:  September 7, 2017

 

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But What About Parking Fees for Asteroids?

Space law is not exactly awash in court opinions. There are statutes. There are regulations. There are not a lot of cases. If, therefore, someone is interested in looking at property rights in space and remembers the case about the fellow who tried to charge NASA parking fees for landing on his asteroid, it behooves one to check out the actual court opinion.  There is one dismissing the fellow’s claim, and this is what I found.

The court’s dismissal of the complaint for failure to state a claim: Back in 2003, Mr. Gregory Nemitz filed a complaint against NASA for parking fees for NASA’s NEAR spacecraft landing on “his” asteroid. He alleged violations of the Fifth, Ninth, and Tenth Amendments of the Constitution, an implied breach of contract, and violation of Congress’s declaration of policy and purpose for NASA. The U.S. Government asked the court to dismiss the complaint. In his opposition to the United States’ Motion to Dismiss, Nemitz stated that “he does not seek a declaration from this Court that he has an ownership interest in” the asteroid at issue. Noting the inadequacy for “creating a property interest,” meaning establishing that he owned the asteroid, of Mr. Nemitz’s various filing under California’s Uniform Commercial Code and registration with the Archimedes Institute website, not to mention his disavowal of a request for a finding that he had a property interest, the Court held that Mr. Nemitz failed to assert a legally protectable property interest in the asteroid. Continue reading

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FAA Withdraws Notice of Proposed Rulemaking on Temporary Flight Restrictions for Space Operations

On August 2, 2017, the FAA published a notice in the Federal Register withdrawing a notice of proposed rulemaking (NPRM) it had released on September 2, 2015.  The now-withdrawn NPRM would have amended the FAA’s rules regarding temporary flight restrictions (TFRs) for space operations.  14 C.F. R. 91.143 allows the FAA to issue a notice to airmen (NOTAM) prohibiting anyone operating an aircraft under U.S. registry or any pilot flying under an FAA-issued airmen certificate from operating an aircraft in an area identified by the NOTAM.  This allows the safe recovery of spacecraft.  The NPRM proposed “to require that all aircraft—not only U.S. registered aircraft or aircraft flown by pilots using an FAA pilot certificate—were restricted from operating in airspace designated for launch, reentry, or amateur rocket operations.  The FAA noted that technological changes have resulted in an increased growth of larger amateur rockets with greater power. The NPRM would also have replaced “space flight operations” with “launch, reentry, or amateur rocker operations” to be consistent with 51 U.S.C. Chapter 509 and the FAA’s space transportation regulations.

The FAA received two comments, which appear to address unmanned aircraft, and states that it is withdrawing the NPRM for: Continue reading

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