A panel of attorneys discussed the ever-evolving galaxy of space law, including disabusing the notion that space law is “unregulated,” during a panel session at South By Southwest.
Franceska Schroeder, a principal in Fish Richardson, provided an overview of the laws governing space and space exploration including the Commercial Space Launch Act, or CSLA; the National and Commercial Space Programs Act, also known as the Land Remote Sensing Policy Act; the Communications Act; and the U.S. Export Control Laws, including International Traffic in Arms Regulations, and Export Administration Regulations.
These laws apply to all space activities in the territory of the U.S., activities of U.S. national outside of the country if the statute explicitly applies outside of the U.S., and activities outside of the country if there are effects in the U.S. and the statute explicitly applies outside the U.S., Schroeder said.
The CSLA requires companies, such as SpaceX and Blue Origin, to acquire a license from the Federal Aviation Administration, or FAA, Office of Commercial Space Transportation in order to perform launch, reentry, and launch site operations inside or outside of the U.S., Schroeder said.
Applications to the FAA are subject to policy, safety, and environmental impact reviews.
“Because of the safety and environmental risks that are associated with launching rockets, the FAA wants to make sure, as they are required by the CSLA, that if something goes wrong, then innocent third parties who are harmed or injured are made whole,” Schroeder said. “And that innocent third party includes the environment.”
The CSLA also requires companies to have an orbital debris mitigation strategy, which is to prevent any damages that may occur from the reentry of objects placed into orbit, as well as minimalizing the amount of debris left in the Earth’s orbit, Schroeder said.
The U.S. government has laid out clear objectives for space law and policy, including: encouraging exploration and use of outer space; promoting safety; protecting U.S. national security; advancing U.S. foreign policy; and addressing obligations of the U.S. under international law.
“U.S. space law is designed to make sure that the international treaty obligations to which the U.S. government has agreed to abide by flows down to the private actors who are U.S. citizens,” Schroeder said. “The requirements to do that occur primarily in three principle treaties: the Outer Space Treaty, the Liability Convention, and the Registration Convention.”
Additionally, licensees must obtain liability insurance or demonstrate financial responsibility to pay the maximum probable loss, or MPL, amount arising from third-party claims, Schroeder said.
“The FAA recognizes there might not be enough insurance capacity in the worldwide marketplace to cover risks of launch operators at any given time,” Schroeder said. “There’s an acknowledgment that there’s a cap on how much the MPL can be.”
The current level of MPL cannot exceed $500 million, plus an additional $100 million for loss or damage of U.S. government property, or the maximum amount of liability insurance available on the world market at a reasonable cost. The U.S. government is responsible for claims in excess of the insurance, subject to congressional appropriations up to approximately $3 billion.
“There has never ever, ever been a claim in excess of insurance,” Schroeder said.
Land Remote Sensing Policy Act
The National Oceanic and Atmospheric Administration, or NOAA, requires licensees to explain what data is being collected from sensors on anything launched into orbit, Schroeder said.
NOAA also wants information about any agreements the licensee might have with a foreign government as far as the information being “sensed” from orbit.
“If the operator of this remote sensing system wants to enter into an agreement with a foreign government or a foreign entity for that sharing of data, the U.S. government wants to approve that,” Schroeder said.
The Communications Act
The Federal Communications Commission, or FCC, licenses the operation of all radio stations.
“A satellite that communicates is considered a radio station in space,” Schroeder said. “In order for satellites to perform the communications functions that they are designed to perform, a license from the Federal Communications Commission is required and that’s because those activities require the use of a very precious commodity known as the radio frequency spectrum and the radio frequency spectrum needs to be monitored in a way that is efficient and doesn’t allow for interference between operators.”
The FCC is not only responsible for coordinating frequency spectrum in the U.S., but is also responsible for providing that data to the International Telecommunication Union.
“The ITU is a specialized organization of the United Nations, but it is not a governing body,” Schroeder said. “It does not decide whether or not to grant licenses. It functions as a focal point for coordination of all telecommunications authorities from around the world.”
U.S. Export Controls
Export controls, regulating the use of U.S. technology and munitions, are governed by International Traffic in Arms Regulations, or ITAR, under the administration of the State Department’s Directorate of Defense Trade Controls, or DDTC, Schroeder said.
“[DDTC’s] job is control items on the United States Munitions List,” Schroeder said. “It’s more than just things we’d think of as munitions … it’s certain satellites, it’s missile technology, it’s nuclear technology.”
The Export Administration Regulations, or EAR, are administered by the Commerce Department’s Bureau of Industry and Security, or BIS, and applies to items on the Commerce Control List, or CCL, Schroeder said.
However, the administration of export controls is evolving. About three or four years ago, the Obama administration, under Defense Secretary Robert Gates, launched a robust export reform initiative that resulted in significant changes to the space industry, Schroeder said.
The ever-changing state of space law
Caryn Schenewerk, of senior director and senior counsel to space flight policy at SpaceX, and Audrey Powers, deputy general counsel to Blue Origin, discussed changes launch companies are working to get enacted through legislative changes and with the agencies regulating space activity.
“[Space law] is not dumb,” Schenewerk said. “It wasn’t dumb when it was written, but it has become overtaken by the technology.”
Powers and Schenewerk described having to go to the FAA with proposals for autonomous naval vessels that would serve as landing platforms for reusable rockets. This was not something the FAA was entirely familiar with before the meeting, Powers said.
Blue Origin operates a private engine-testing site in western Texas, but it is still subject to government oversight and regulations, Powers said.
“[It’s the] FAA’s responsibility to govern the safety of people on the ground who are not involved in the launch activities,” Powers said. “We have contractors. We have customers who are engaged in our engine testing activities.”
Schenewerk said laws regarding space launches have always been developed with the key principle of public safety. The laws that were in place created the framework for a safe space industry, Powers said.
“We need to reform the laws that have been in place for decades in this industry,” Powers said. “We need overhaul them. The FAA is in an exercise right now of rewriting all of their launch engagement licensing regulations.”
How do I get into space law?
Powers and Schenewerk provided some background on how to get into space law and what areas to focus on.
Schenewerk said an attorney wishing to get into space law should immediately focus on export control and government contracts.
“In addition to export control and government contracts that dominate our lives, you really need to just be a good, generalist lawyer,” Powers said. “You need to understand contracts and property. You need to know how to negotiate. You need to know how to be a business partner to your client.”