FCC’s Proposed New Orbital Debris Rules: Jurisdiction, Duplication, and Indemnification

The Federal Communications Commission (FCC or Commission) released a notice of proposed rulemaking in the Federal Register on February 19, 2019, to revise its regulations governing satellite orbital debris.  The NPRM revisits the Commission’s 2004 regulations.  Under the current space debris mitigation–that is, prevention–regulations,  the FCC requires satellite operators to disclose information regarding their operations, maintain their orbital locations , and, at the end of a satellite’s life, dispose of it properly.  In the time since the FCC adopted its regulations in 2004, the FCC has seen an increase in proposals for the deployment of large constellations in low-Earth orbit, and the advent of new satellite and deployment technologies that the FCC fears could increase the number of debris-generating events, unless it imposes improved debris mitigation practices.  Accordingly, the FCC proposes modifications to its disclosure and operational requirements.

Jurisdiction over Debris.  Interestingly, it also invites comments on its authority over orbital debris, asking whether it properly found authority for the requirements it promulgated in 2004, and for what it proposes now.  The Commission said:

The 2004 Orbital Debris Order specifically referenced the Commission’s authority with respect to authorizing radio communications, including the statements in the Act that charge the FCC with encouraging ‘‘the larger and more effective use of radio in the public interest,’’ and provide for licensing of radio communications, upon a finding that the ‘‘public convenience, interest, or necessity will be served thereby.’’ Did the 2004 order cite all relevant and potential sources of Commission authority in this area? Do the provisions discussed, or other statutory provisions, provide the Commission with requisite legal authority to adopt the rules we propose today?

The FCC’s claim to jurisdiction rests on a thin reed.  According to the FCC in 2004, its jurisdiction over orbital debris rests merely on its conclusion that “orbital debris mitigation issues are a valid public interest consideration in the Commission’s licensing process.”  The FCC stated that because orbital debris could affect satellite operations, it has a “bearing upon the ‘larger and more effective use of radio in the public interest.’” (citing 47 U.S.C. 303(g)).  Although the FCC has authority over “all interstate and foreign communication by . . . radio and all interstate and foreign transmission of energy by radio, which originates and/or is received within the United States,” 47 U.S.C. 152(a), it is unclear how the FCC has interpreted this jurisdiction to extend to orbital debris.  If the FCC can regulate anything of public interest other than broadcast and transmissions, one wonders what it can’t regulate?  Debris generation is not radio communication.

Duplicative Regulation.  The FCC also raised an issue that should be of interest to FAA-licensed launch operators.  Namely, it asked whether  “there are any areas in which proposed requirements may overlap with requirements that are clearly within the authority of other agencies, so that we may seek to avoid duplicative activities. ”  It would likely behoove the launch community to remind the FCC that the FAA has exclusive jurisdiction over launch and reentry, and that the FCC may not impose requirements on those activities, even if a vehicle has an FCC-licensed transmitter on board.

The FCC addressed this very issue in its 2004 Order, stating that it would not attempt to regulate debris from launch vehicles, acknowledging that “Congress appointed the Department of Transportation to be the U.S. licensing authority for commercial launch operators . . . and the Department of Transportation, through a delegation of authority to the Federal Aviation Administration, has already adopted detailed launch safety requirements that include measures to mitigate orbital debris and regulations requiring launch liability insurance.”  The FCC also offered that “[t]o the extent that the debris mitigation disclosure certifies that the debris mitigation plans of the launch vehicle upper stage have been, or will be, reviewed by the FAA, no further FCC examination of the debris mitigation plans of the upper stage will be required.”

With such a clear statement on the books, why should a launch operator need to comment in this proceeding?  Because by asking the question, the FCC is opening the door to revisit the issue.  Also, agencies forget.

Indemnification.  In contrast to the Commercial Space Launch Act, where an FAA launch or reentry licensee may be eligible for indemnification by the U.S. Government, the FCC proposes that its licensees indemnify the U.S. Government against damage claims under the Outer Space Treaty and the Liability Convention.  The FCC does not disclose the statutory basis for proposing this requirement, and a quick perusal of the most likely provisions of the Communications Act did not unearth the source of the FCC’s authority.  If anyone out there knows, please share the citation in comments here.

Assuming that the Communications Act does not address this issue, it is an odd and questionable choice to make on the part of the FCC.  Typically, allocation of risk involves the type of policy choices that are made by Congress, that is, the type of policy determinations that are legislative in nature.  Just as it is rational for Congress to decide to protect the launch industry to some extent from claims for damage, see 51 U.S.C. 50914, so might it have chosen not to.  Likewise with the satellite industry.  If, however, Congress has not said that the satellite industry must protect the U.S. Government, one might ask, first, how the FCC thinks it has the authority to do so, and, second, why it has chosen a different path for a related industry?  Moreover, if the U.S. government has already taken on a liability obligation by treaty, how does the FCC have the authority to change the government’s obligations?  Because it is the legislative branch, Congress has that ability.  The FCC is not technically part of the executive branch, but neither is it a legislative entity.   As I asked above, if Congress did provide the FCC authority to require indemnification, please do let me know.

Other proposed requirements.  The FCC raises concerns about the deployment mechanisms for releasing satellites.  Once they perform their function, they no longer serve a useful purpose and become debris.  Not all these devices carry a transmitter requiring a license.  The FCC proposes to require disclosure of any debris mitigation plan for the device.  If the device does not possess any radio frequency facilities, one may ask how the FCC has jurisdiction over it.  The Commission proposes to require a license applicant to identify any liquids released that may persist in a droplet form and to address the measures taken, including design and testing, to eliminate the risk of release of liquids, and to minimize risk from any unplanned release of liquids, by, for example, choosing an orbit that will reduce the  orbital lifetime of such liquids. The FCC also addresses safe flight profiles, including quantifying collision risk and tracking and data sharing. Other topics include post-mission disposal, proximity operations, and operational rules.  For a more thorough discussion of the proposed requirements themselves, do read the whole proposal.

Comments Due: April 5, 2019

Reply Comments Due: May 6, 2019

Don’t forget the full text of the NPRM is available here.  And don’t forget to review the Federal Register Act for the legal effect of something that doesn’t appear in the Federal Register.