In a Loper Universe, FCC Seen Facing Space Regulation Questions
In a post-Chevron deference era, the FCC's space regulatory work beyond its spectrum bailiwick could be on shaky ground, space law experts said Tuesday during an FCBA CLE. Multiple speakers predicted "friendly chaos" for space policy from the incoming Trump administration, with it likely being friendly to commercial space but change being a constant. The Chevron doctrine, under which courts generally defer to regulatory agencies' expertise, was overturned this year by the U.S. Supreme Court's Loper decision, which gives agency expertise lesser weight.
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With the U.S. never having had a national space act with comprehensive assignment of regulatory authority, various agencies operate through a patchwork quilt of statutory authority and ancillary jurisdiction based on statutes not directly related to space, said TechFreedom Senior Counsel Jim Dunstan. The end result is an array of rules gaps, oversights and stovepipes, he said.
Expect big shifts in the space regulatory framework in the U.S. due to the Loper decision overturning Chevron deference, as well as the changing White House administration, said Laura Cummings, a Greenberg Traurig space lawyer. She said that while the FCC deserves kudos for addressing orbital debris regulation when there was an oversight vacuum, that's not a strong argument in light of Loper. With some mega-constellation operators "saber-rattling" about challenging the agency's orbital debris rules, the FCC could face difficulties, she said.
The FCC will undoubtedly be a battleground in a Loper era, said Philip Hover-Smoot, CEO and previously general counsel of space domain awareness company Scout Space. It will largely be deep-pocket companies challenging FCC rules, he said, with startups -- such as those comprising the in-space servicing, assembly and manufacturing (ISAM) sector -- lacking the capital, he said.
The FCC has responsibilities related to the integrity of telecommunications networks, so having some oversight of safe operations of those networks makes sense, said John Janka, Viasat chief officer-global government affairs and regulatory. Should a legal challenge of the FCC's orbital debris oversight arise, a court will face a pretty cogent argument that what the FCC has done on debris is essential to its core mission, he said. In addition, the court must consider potential larger problems that would arise if it creates a regulatory void by curbing FCC authority. Jennifer Warren, Lockheed vice president-global regulatory affairs and public policy, said the agency could argue that not regulating debris raises interference risks.
Warren said clarity from Congress is needed on agencies’ authority. That would help give certainty if an overseas regulatory body challenges domestic operators on something approved domestically.
Commerce's Office of Space Commerce should regulate orbital debris because Commerce's NOAA is arguably the only agency that has clear statutory authority, Cummings said. Moreover, Commerce is the civil space situational awareness authority and thus would have the best understanding of the orbital debris environment, she added. Meanwhile, the FCC has "amorphous bounds" on orbital debris, she said. One advantage of having the FCC as the home of orbital debris regulation is that, since it's an independent agency, its policies are slightly insulated from the political winds of changing administrations, Cummings argued.
Dunstan disagreed, saying Commerce is far too understaffed and also lacks appropriate expertise. But, he added, the FCC also lacks the technical expertise on issues like ISAM proximity operations. Eventually there needs to be a national space regulatory agency, Dunstan said. He said a challenge with having a one-stop regulatory shop for space is that multiple congressional committees oversee aspects of space, and getting them to agree on a single agency is a huge problem. In addition, he said, Congress must rethink how it approaches space oversight.
Dunstan said there is a danger of space activities heading for greener regulatory pastures outside the U.S. because of regulatory uncertainty. Previously, it was common for lawyers to advise clients seeking a NOAA earth imaging license to get it elsewhere and then seek U.S. market access because of how long the approval process was, said Dunstan. He noted, however, that NOAA has significantly improved its turnaround in the past decade.