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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Senate Hearing, Orbital Debris, and a Manx Prize

I watched yesterday’s latest in the series of Senate Commerce Committee hearings on Reopening the American Frontier. There was, as billed, lots of good talk about public private partnerships in the development of the space frontier, but what I found most interesting was one of the responses of Dr. Moriba K. Jah to a question about orbital debris, of which there is a lot in orbit, from Senator Ted Cruz.

Background:  In his written testimony here, Dr. Jah explains the magnitude of the orbital debris problem as follows:

The US Strategic Command (USSTRATCOM) currently has over 24,000 records active in its space situational awareness database, commonly referred to as the Department of Defense “catalog.” Of these, well over 18,400 records correspond to well-tracked, well-understood [resident space objects] RSOs in Earth-centric orbit, roughly 1,300 of which are operational satellites; the rest are so-called “space junk.”

In response to Senator Cruz’s question about what to do about space debris, Dr. Jah said, among other things, that the European Space Agency has something called a Clean Space initiative which is working to identify and remove space debris. He noted that it’s more expensive to bring something down than to put up something that works. He also said that it’s politically not very feasible because any sovereign nation is the owner of that piece of debris. (But see here for a discussion of the ownership issue.) Dr. Jah himself advocates a civil space traffic management public private partnership.

De-orbiting.  What delighted me, however, was his mention of de-orbiting space debris. I think someone should offer a prize to anyone who figures out how to bring it in. I even wrote a science fiction novel to that effect titled Manx Prize, where a consortium of satellite and orbitat operators headquartered on the Isle of Man offers a prize to anyone who first brings in a large, dead satellite. Safely. It made sense to me that the companies who need space cleaned up should offer an incentive to do so, one perhaps large enough for the contestant to be able to purchase the zombie satellite on orbit. Just to be clear, the Consortium of Man is in no way modeled after the Space Data Association, which in real life is situated on the Isle of Man. I, like everyone else, just really like saying “Manx.”

There are a host of legal issues associated with de-orbiting someone else’s property. The offer of a prize means that the contestants have to figure them out as well as all the technical issues. Charlotte Fisher is the engineer trying to win this prize, and the story centers around her efforts and travails, but she has a lawyer for the other stuff, like purchasing dead satellites from their owners and getting access to proprietary technical specifications. The story involves regulatory shenanigans. I was at the FAA when I wrote this, so I was sensitive about naming the regulatory agency so I just called it “the regulator.” It’s nice and ominous sounding, isn’t it? I got around ITAR, the International Traffic in Arms Regulations, but in no way that constitutes sound legal advice for anyone in the present. CFIUS, the Committee on Foreign Investment in the United States, came in handy at the end.

For the technology at the time I was writing the book Space News had a lot of stories about dead satellites.  Someone won a real life prize for a sticky boom, and I found a design for what Charlotte called her “brake-and-bake.”  The day job had me good on launch, ok on reentry, but pretty poor on orbit.  Basically, my knowledge tracked the FAA’s evolving jurisdiction: but I knew what I needed to research, I knew where to find things, and I had access to a few good orbital mechanics.

Anyway, a prize would be cool. I recall hearing that the Ansari X Prize produced a collective expenditure on reusable suborbital rockets by all the contestants far in excess of what the prize offered. Competition can work. Think of the glory. Now, if only there were someone around with the right incentives to offer a prize for getting rid of debris.

And, if you feel like picking up a copy of the book, I thank you in advance.

 

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Adverse Possession in Space

Mackey Chandler’s short story Adverse Possession deals with a confrontation between an official ship from Earth reaching Mars and finding, much to the consternation of all, that this particular celestial body is already inhabited.  The story is set in the near future, close enough that readers who are space lawyers may feel compelled to assess the situation in light of current law.  SPOILER ALERT (this is where you pause and go read the charming and entertaining story–it’s a fun, quick read.  I’ll wait):  What threw me was that Mars was not inhabited by Heinlein’s fundamentally scary Martians, or by Edgar Rice Burrough’s Deja Thoris and Tars Tarkas, but by people from Earth.

How the heck did people of Earth get to Mars with no one knowing about them?  Under current law space flight participants have to sign reciprocal waivers of claims with the U.S. Government and, as of 2015, with the launch operator.  The launch operator has to get an FAA license to get off Earth, and that process involves saying where you are going.   (Sure, these laws may not survive the future, but laws seem hard to repeal, even those that are designed to sunset.  How many times have the so-called “indemnification” provisions of the Commercial Space Launch Act been extended?  A lot.)  It seems that someone at the FAA would know that people had gone to Mars and who they were, and might mention it in passing during an inter-agency meeting or three.  We know for sure the agency would have issued a press release.  Had the secret travelers availed themselves of the regulatory provisions protecting proprietary information?   Even though I have said SPOILER ALERT I will not give away the answer.  I will only say it’s not legal.  Any comments to this post should be appropriately cited.

About the Books Tab: I like science fiction. I like space law. The Book Tab contains science fiction books or short stories I come across that touch upon some element of space law. When I find an issue of space law in near future science fiction I will mention the book and the issue, and you can find links in the post and at the Book Tab. The Book Tab also contains my books, of course, even though two of them are purest space opera with not an ounce of space law to them. (That’s because it’s my blog.) The other two are bourgeois, legal science fiction full of space law and policy wonkery.  They’re the ones without a space marine on the cover.

 

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NASA Advises of Intent to Grant an Exclusive License

This is interesting.  The link is to a Federal Register notice where NASA gives notice of its intent to grant an exclusive license for an invention for a multi-Gb/s laser communications terminal for mini-spacecraft.  The notice provides interested persons 15 days to object:

The prospective exclusive license may be granted unless, within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be consistent with the requirements regarding the licensing of federally owned inventions as set forth in the Bayh-Dole Act and implementing regulations. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated exclusive license.

There are a couple of interesting points.  The first is that NASA says it won’t make any objections public, and that “to the extent permitted by law,” it won’t release the objections under the Freedom of Information Act.  Potential objectors should bear in mind that FOIA is a federal statute, and that any grounds for withholding an objection from public disclosure would have to fall within one of FOIA’s enumerated exemptions.

The second interesting point is more frivolous and may be mostly interesting to me.  When I wrote my bourgeois, legal science fiction novel, The Sky Suspended, the plot turned on a patent and the federal licensing of an interstellar star drive created by one company but licensed to its competitor.  I based the novel’s plot on this statute, specifically paragraph (f) of 42 U.S.C. 2457, but the NASA notice is grounded in this one, 35 U.S.C. 207.  Readers of the novel might point out that I clearly didn’t know about this objection process.  They would be right, but I would explain that the book is alternate future history, somewhat like Michael Flynn’s books.

Anyway, anyone who wants to object to the exclusive license or file his or her own application has 15 days in which to do so.

UPDATE on May 8:   Here’s something similar from the Department of the Navy, offering to license assigned patents.

 

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Science Fiction, Space Law, and the Regulatory State: Or, How John Varley Broke My Heart but Other Science Fiction Writers Shouldn’t Have To

redthunder-from-amazonI 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, and here’s the sad part, the characters made no mention of FAA launch licensing.  They only defied Air Traffic , but they should have also defied the FAA’s Office of Commercial Space Transportation.

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? Continue reading

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A Company Town and Atlantis Ascending

atlantis-ascending-cover

A couple of years ago I read an early draft of my friend Jim Dunstan’s book Atlantis Ascending, about a young woman and her best friend’s recruitment to working on a solar power station in orbit. It was a lovely if alarming read, and it highlighted the perils of the company town. If your employer owns everything around you and is the source of your food, water, and even air, how does that work? Do you want to sign that contract? What kind of protections do you have? Any?  It can make life hard on the worker, and this books certainly shows a number of ways for that to happen. I mention this book here because it raises questions for a space lawyer who likely hasn’t yet been born. Also, Jim is a space lawyer. Lastly, he has a really cool space simulator at newspacefiction.com.  Accordingly, Atlantis Ascending gets a Ground Based thumbs up!

About the Books Tab: I like science fiction. I like space law. The Book Tab contains science fiction books I come across that touch upon some element of space law. When I find an issue of space law in near future science fiction I will mention the book and the issue , and you can find links in the post and at the Book Tab. The Book Tab also contains my books, of course, even though two of them are purest space opera with not an ounce of space law to them. (That’s because it’s my blog.) The other two are bourgeois, legal, science fiction. Do watch out for the space opera. You have been warned.

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Codification, Re-Codification, and Alternate Future History

Sometimes when you are reading science fiction you find that the story’s future is in our past.   What could have happened clearly didn’t because that future is over. The emotionally satisfying convention here is to treat the story as an alternate future history, an alternate timeline. This way we can continue to enjoy classics like Robert Heinlein’s Door into Summer, despite the lack of cold sleep in 1970.

A lot of people use the easy method to determine whether the writer must have been describing a time line that branched off from our own. They will notice—without error—that the ‘90’s are over. There are other, more subtle ways to catch on to the creation of invisible timelines. Space law can help you out here.

Michael Flynn’s Firestar series contains those kinds of clues. The books are set in the near-future for the time he wrote them; but in 2016, we are looking at the 1990’s in the rearview mirror. The books are a rollicking read, a bit of a soap opera, and sprawl from the New Jersey suburbs to orbital construction. The series tells the tale of a commercial titan who kickstarts the industrialization of space out of fear that an asteroid might hit Earth. This being fiction, it’s a good thing she does, because….. Let’s just say it’s good someone’s getting ready for the sky to fall.

When I read the books, I’d been working at the FAA for years, helping draft regulations to implement what is popularly Continue reading

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