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


Spaceports as Contractors

Spaceports are contractors. Not all spaceports are always contractors in all respects, but a lot of them are a lot of the time. If a spaceport is a contractor it has to enter into agreements with the launch operators launching from its site that neither the spaceport nor the launch operator will bring claims for damages against each other for harm arising out of licensed or permitted activity.

Under the Commercial Space Launch Act, 51 U.S.C. ch. 509, and its implementing financial responsibility regulations,14 C.F.R. part 440, a launch licensee or permittee must enter into reciprocal waivers of claims with each of its contractors involved in launch or reentry services. Chapter 509 defines launch and reentry services as activities involved in the preparation of a launch or reentry vehicle, payload, crew (including crew training), government astronaut, or space flight participant for launch or reentry; and the conduct of a launch or reentry.

Spaceports—which Chapter 509 terms launch and reentry sites, but I’ll use the vernacular here—satisfy the definition of a contractor under 14 C.F.R. § 440.3.  That section defines contractors to mean those entities that are involved at any level, directly or indirectly, in licensed or permitted activities, and include suppliers of property and services. Spaceports provide property and services, including launch pads, runways and launch services. Some spaceport business models allow for providing support services for payload integration, fueling, hot fire testing, and range safety. The FAA’s regulations in part 420 require spaceports that are launch site operators to coordinate their customers’ hazardous activities. A number of these coordination activities, including the scheduling of operations and notifications, may constitute launch services.

The financial responsibility requirements apply both to commercial and state spaceports. Under Chapter 509, the only spaceports that the FAA does not license are those operated by the federal government. Accordingly, both commercial and state spaceports need to be aware of their obligations under Chapter 509 and the FAA’s financial responsibility regulations.