TR Daily Lawmakers, Industry Ask FCC to Delay Orbital Debris Action
Wednesday, April 15, 2020

Lawmakers, Industry Ask FCC to Delay Orbital Debris Action

The chairwomen and ranking members of the House Science, Space, and Technology Committee and its science, space, and technology subcommittee asked FCC Chairman Ajit Pai today to pull a draft orbital debris item from the agenda for the agency’s April 23 meeting. The Aerospace Industries Association (AIA) also called on the Commission to defer action on the item, as a growing number of satellite interests expressed concerns with the report and order and further notice of proposed rulemaking.

“We write today to request that you delay consideration of this matter. Given the unprecedented circumstances surrounding the COVID-19 crisis, the immense effort undertaken to recover from the pandemic, and the potential for the FCC’s proposal to exacerbate impacts on U.S. industry and international competitiveness at a critical period in our nation’s history, we hope that you will agree to postpone future action,” House Science Committee Chairwoman Eddie Bernie Johnson (D., Texas) and ranking member Frank Lucas (R., Okla.) and science subcommittee Chairwoman Kendra Horn (D., Okla.) and ranking member Brian Babin (R., Texas) said in their letter. “It is abundantly clear that the Commission should delay consideration of this matter. Stakeholders have communicated significant concerns with the proposed rule. The FCC’s own draft Notice of Proposed Rulemaking, issued on February 19, 2019, notes that the Commission may not have cited sufficient authority to promulgate initial orbital debris regulations – a sentiment also provided in testimony before the House Committee on Science, Space, and Technology (‘the Committee’). The proposal also contradicts Executive Branch policy and is inconsistent with existing and proposed legislative action. Furthermore, the issuance of a significant rulemaking during this time of national emergency, coupled with the expedited schedule, could call into question the FCC’s process related to this matter. In addition, as outer space becomes an increasingly active environment for science, exploration, national security operations, and commercial activities, the implications of any proposed rule on stakeholders must be fully considered, including from a scientific and technical basis.”

The lawmakers added, “The Executive Branch is currently undergoing a review of Commercial Space Regulations pursuant to Space Policy Directive 2 – ‘Streamlining Regulations on Commercial Use of Space.’ The Department of Commerce was charged with leading this effort related to radio frequency spectrum in coordination with the Office of Science and Technology Policy and the FCC. In response to the draft notice of proposed rulemaking, the Department of Commerce argued that the FCC’s proposal could duplicate their efforts and add confusion to the regulatory reform process.”

In addition, the letter noted that “Congress is also considering legislation related to commercial space activities, including orbital debris. The House of Representatives passed the American Space Commerce Free Enterprise Act by voice vote, and the Committee favorably reported the American Space Situational Awareness and Framework for Entity (SAFE) Management Act last Congress. Similar legislation is being considered this Congress, and the Committee has already held several hearings on the topic. Regulatory action by the FCC at this time, without clear authority from Congress, will at the very least create confusion and undermine the Commission’s work, and at worst undermine U.S. economic competitiveness and leadership in space.”

An FCC spokeswoman said the agency is reviewing the lawmakers’ letter.

Meanwhile, the AIA has also asked the FCC to postpone action on the item.

“Orbital debris mitigation is an issue of great importance to maintain the long-term safe operation of all commercial, civil, and national security spacecraft and one all members of AIA agree needs careful attention. However, we have concerns about the proposed regulations in the draft report and order, as well as the proposals in the Further Notice of Proposed Rulemaking (FNPRM). Given these concerns, we urge the Commission to postpone consideration of orbital debris mitigation items at the April 23, 2020, meeting to provide adequate time for consideration and comment, including a discussion on the importance of a common integrated approach to space across all expert agencies,” AIA said in an ex parte filing posted today in IB docket 18-313.

“As written, the disclosure and risk mitigation requirements lack transparency and objectivity and would likely confuse, discourage, and disincentivize the continued growth of the U.S. satellite industry,” the trade group added. “Imposing additional regulations and costs on the satellite industry will stymie the commercial innovation that helps power the rapid development of a flexible, resilient, and sustainable space architecture. This is an essential part of maintaining the U.S.’s global competitiveness in space and meeting our growing national security demands.”

The filing observed that “the Commission’s Notice of Proposed Rulemaking (NPRM) on ‘Mitigation of Orbital Debris in the New Space Age’ and the President’s Space Policy Directive 3 (SPD-3) note that the number of debris objects and potential for debris generating events have grown. In June of 2018, SPD-3 directed the federal government to update its own debris mitigation guidelines, the Orbital Debris Mitigation Standard Practices (ODMSP). Over the course of more than a year, experts from across the government, including NASA and DOD, worked to update these guidelines, publishing the revised ODMSP in 2019. SPD-3 further noted the importance of the ODMSP in shaping the international environment on orbital debris mitigation and indicated that standards and best practices should be ‘incorporate[d]…into Federal law and regulation through appropriate rulemaking or licensing actions.’ We are encouraged by the Commission considering the updated ODMSP in its rulemaking. However, the draft update to the orbital debris mitigation regulations includes additional compliance requirements that diverge from and are more aggressive than those standards – without any reasoned decision-making transparent to the public. For instance, some of the new requirements for non-geostationary satellite systems may not be achievable at a reasonable cost. We ask the FCC to limit risk mitigation requirements to be as stringent as, but no more than, the ODMSP standards.

“Further, the FCC’s draft regulations impose many additional information disclosure requirements but fail to define objective standards governing when the substance of the information disclosed will be sufficient to warrant the grant of a license,” AIA complained. “This makes it extremely difficult for satellite operators to determine in advance what obligations may be imposed on satellite licenses. We ask the FCC to provide objective standards of sufficiency for an application to warrant a license. Finally, the FNPRM proposes a multi-million-dollar post-mission disposal bond requirement, which would be forfeited in the event of a failure to decommission or deorbit a spacecraft successfully. The formula for the bond requirement disincentivizes operators from using more durable, longer-lived commercial systems or financing innovations in on-orbit debris mitigation, mission extension, and disposal services. It instead incentivizes operators to use shorter-lived spacecraft, resulting in additional replacements, more launches, and even greater orbital debris risk. We ask the FCC not to adopt the proposed bond requirement.

“Given these issues, we urge additional time for consideration of and comment on these important topics. We look forward to continuing to work with you on the regulatory and policy improvements that will ensure continued U.S. leadership in the space sector,” AIA concluded.

A number of other entities have also raised concerns with the draft item that the FCC plans to consider at next week’s meeting.

For example, in a joint filing yesterday, AT&T, Inc., EchoStar Satellite Services LLC, Hughes Network Systems LLC, Intelsat License LLC, and SES Americom, Inc. highlighted their concerns with indemnification requirement in the draft order. They “recommend expanding the Further Notice of Proposed Rulemaking (‘FNPRM’) proposed in the Draft Order to include a more detailed analysis regarding the implications and application of an indemnification provision, as well as adding several specific questions about the post-disposal bond addressed in the draft FNPRM.”

The filing continued, “As a result of considerable experience as publicly-traded companies in the commercial space industry, the U.S. GSO [geo-stationary satellite orbit] Operators have concerns regarding the breadth of the Draft Order’s indemnification requirement and the disproportionate ramifications it will likely have on U.S. licensees. The Draft Order’s new indemnification requirement provides that, at the application stage, a U.S. licensee must certify that they will indemnify the U.S. government against all costs associated with a claim brought under international law that stems from that particular spacecraft. The ambiguity and boundlessness of this provision is stunning. As written, the indemnification provision would force prospective and current U.S. licensees to accept unlimited liability for their spacecraft—even prior to construction—regardless of fault. Further, this burden would only be borne by non-U.S.-licensees if, after a case-by-case review of a market access application, the Federal Communications Commission (‘Commission’ or ‘FCC’) deems it necessary. This inequity has the potential to put U.S. licensees at a staggering competitive disadvantage vis-à-vis their foreign counterparts.”

The operators said that the FCC’s record in the proceeding does indicate support for the indemnification mandate and they noted that “[t]he Draft Order does not cite any statutory authority for requiring indemnification; stating only that imposing this obligation ‘strengthens the incentives of applicants to mitigate risks.’”

The filing also complained that the FNPRM proposes the adoption of “a post-mission disposal bond … that would impose significant costs (up to $100 million) on U.S.-licensed satellite operators. This proposal lacks any factual support to demonstrate that there is a problem with post-mission disposal that is not already resolved through the Commission’s existing authority to levy fines. The U.S. GSO Operators therefore suggest the Commission include several additional questions in the FNPRM that are essential to having a full and fair understanding of the proposed new bond requirement.” —Paul Kirby, [email protected]

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