Space Mission Authorization: Enabling the Final Frontier
The U.S. regulatory regime authorizing and overseeing commercial space missions is responsible for one of the most dynamic and technologically advanced industries in the world. Recently, however, investment in the space industry has slowed. This is happening in part because the rate of innovation and diversity of recent technologies enabling novel space missions is beginning to outpace the regulatory regime’s ability to provide industry with optimal predictability. The current requirements require firms to navigate a complex web of federal agencies, with companies’ expectations regarding approval resting largely on prior experience; approval for innovative concepts is particularly difficult, as no such experience exists. This element of the unknown leads to hesitancy for potential investors in new and exciting technologies, reducing industry’s ability to translate innovative ideas into fielded capabilities. The regulatory regime is simply not keeping pace with the rate of commercial space innovation.
To address these issues, the United States should consolidate its commercial space mission authorization regime within the Department of Commerce. This consolidation should primarily be procedural, allowing agencies such as the Federal Aviation Administration and the Federal Communications Commission to retain their core responsibilities. The Department of Commerce, however, should be the sole point of contact and final licensing authority for companies conducting space missions. The idea is to provide the benefits of a “one-stop shop” authorization model, without the drawbacks of removing responsibilities from key regulatory stakeholders.
Innovation has outpaced the current regulatory system. In today’s fast-paced environment, regulatory inefficiencies stifle innovation in a field the United States wants to continue to lead. To do so, change needs to begin now. We argue the current system, while workable, is not optimal, and is likely to become more unwieldy as innovation in space technology persists. We also present common alternatives to our thesis and explain why they are unsuitable. Finally, we explain in depth the rationale for placing responsibility for space mission authorization under the Department of Commerce and sketch the basic form such a regulatory regime would take.
Background
The origins of the current space mission authorization regime trace back to the 1967 Outer Space Treaty. This agreement, specifically Article 6, assigns states responsibility for the actions of their citizens in space. The U.S. government meets these obligations today through licensing and permit requirements, as well as through oversight once a company launches a spacecraft. In short: the Federal Aviation Administration governs launch and reentry, the National Oceanic and Atmospheric Administration governs remote sensing (i.e., images of Earth), and the Federal Communications Commission governs communications through spectrum use. Together, these three entities, with input from across the interagency, constitute the space mission authorization regime.
The success of the commercial space industry in the United States owes much to the way this regime has, thus far, implemented regulations. Leaders in both industry and government laud the “light touch” with which regulators in the United States fulfill their mandate. Such has led to the establishment of more U.S.-based space tech companies than the rest of the world combined, a total domestic space economy of about $200 billion of real gross output, and about 150,000 people employed in the private sector alone.
The impressive statistics produced under this regime do not tell the full story, however. Antiquated regulatory structures with unclear approval processes can deter investment, yet it is with innovative new technologies that such investment is most important. Therefore, many of the costs associated with the current regime’s flaws are in the form of opportunity costs, such as in innovations that do not happen. So far, however, regulators’ flexibility has generally enabled novel concepts to proceed, if only through ad hoc authorization processes. The regulatory regime that evolved out of the 1967 treaty is simply not modernized for the exciting slate of space missions today’s technology now makes available.
A recent public example of this is in the in-space servicing, assembly, and manufacturing space subsector. A company called SpaceLogistics developed and deployed a mission extension vehicle, designed to attach to an aging or damaged satellite and conduct basic repairs. Having never been attempted, regulators had no idea who was going to oversee these vehicles under the Outer Space Treaty. Eventually, they determined the Federal Communications Commission would do it since the first mission extension vehicles were going to repair communications satellites in geosynchronous orbit. Yet the mission extension vehicle took photos of Earth, so the interagency could just as easily have determined the National Oceanic and Atmospheric Administration — which had to license the satellites as well anyway — to be the responsible governing agency.
The Current Situation
“Shoehorning” novel concepts into existing authorities in this way can make investors nervous, cost companies money, and stifle innovation. For large companies with established processes, this is not a significant issue, as they can afford to navigate these complexities. SpaceLogistics, for example, is a subsidiary of Northrop Grumman. But for smaller companies developing innovative technologies and missions, this process can prove daunting. Some companies we interviewed contract out to specialists with experience in this capacity to facilitate the licensing process. In this sense, complexity and ambiguity can act as a subsidy for large companies.
Uncertainties in the Federal Aviation Administration’s licensing process exemplify some of today’s frustrations. The current process involves three general steps: pre-application consultation, application evaluation, and license issuance or denial. During the pre-application consultation, which has no time limit, the applicant can submit licensing documents for feedback and refinement. Once the administration formally accepts the application, the evaluation phase begins. There is a 180-day limit on this evaluation; however, the clock stops if the application has an issue or if the Federal Aviation Administration later requires additional information. The entire process can take years to approve new projects, and these delays incentivize firms to pursue alternate regulators.
This ambiguity leads to issues on the government side as well. In September 2022, the Federal Communications Commission decided to act on an issue long simmering in the space community: space debris in low Earth orbit. The commission determined to reduce the amount of time companies have to deorbit satellites in certain constellations from 25 years to five years. The House Committee on Science, Space, and Technology expressed concern about “the Federal Communications Commission’s proposal to act unilaterally” and without “clear authority from Congress.” But the Federal Communications Commission approved its rule anyway because of the seriousness of the space debris issue.
Our research and interviews elicited a number of suggestions for improving this process and the overall structure governing space missions. While individuals varied on specifics, we can classify the plausible alternatives into four categories, each with some merit.
Option 1: Retain the Status Quo — Flexibility and “Light Touch”
The basic argument here is that the United States dominates the global commercial space industry, and it has done so under this regime. While novel missions do arise, the bureaucracy continues to show flexibility and creativity in its authorizations and retains a liberal approach to granting licenses. This enables continuing success for the United States, exemplified by the fact that 93 percent of launches now occur in the United States.
Why the Status Quo Is Not Optimal
Industry’s complaints about the current process occur for a reason. Companies do not like to complain about their regulators if there is not a serious problem. And given recent and upcoming innovations, we can already see the roadmap to authorization becoming increasingly blurry. We are in an era where concepts such as space mining, in-orbit servicing, space-based solar power, and space nuclear technologies are under development by the private sector. Expedient solutions for individual missions will lead to even greater confusion in the long run, both for companies and the agencies that regulate them. The entire point of having a process in the first place is to eliminate the sort of ad hoc decision-making we saw with the mission extension vehicle. The current framework leaves it up to the operator to find out what authorizations and approvals they need and where to go to receive these approvals; and for novel missions, neither the operator nor the regulators know where to go. This is the exact opposite of what industry is asking for under a new look at space mission authorization.
Alternative Option 2: The Federal Communications Commission
Some suggest placing the Federal Communications Commission in the lead for authorizing space missions. This concept would have the commission continue to focus on spectrum usage and would still involve the National Oceanic and Atmospheric Administration and the Federal Aviation Administration for launch and Earth sensing, respectively. Novel concepts concerning the Federal Communications Commission, such as satellite servicing, would still have to undergo the Federal Aviation Administration’s payload review process, for example. This option would leverage the Federal Communications Commission’s autonomy as an independent organization and its experience working with international authorities, specifically the International Telecommunications Union. Emerging concepts such as debris removal and in-orbit servicing and manufacturing have already caused the Federal Communications Commission to open a Space Bureau.
Why the Federal Communications Commission Leading Is Not Optimal
Attempting to put mission authorization into the hands of the Federal Communications Commission would not provide flexibility or predictability. The primary reason for this is the other side of the fact that the Federal Communications Commission is independent: it does not generally lead interagency processes and does not answer to the president. The regulatory regime should weigh issues including national security, public safety, facilitation of commerce and trade, and diplomacy. Without answering to the head of the executive branch, there is no structural insurance that such considerations will receive their due concern. Suppose, for example, a company wants to create a power station on the south side of the moon, while astronomers want an observatory there as a civil space mission. These are competing interests, and as an independent regulatory body, it is extremely difficult to ensure such bodies are answerable to the public interest, as the space debris issue illustrates. And without the sort of interagency review standardized within other agencies, the Federal Communications Commission would face challenges integrating those agencies’ concerns into the licensing process.
Alternative Option 3: The Federal Aviation Administration
Other than the Department of Commerce, the agency most recommended to lead space mission authorization is the Federal Aviation Administration. This is certainly the most plausible alternative, as the Federal Aviation Administration is involved in every launch anyway. Additionally, its focus on safety is one that is both neutral (in that it is not prioritizing anything other than safety) and necessary.
Why the Federal Aviation Administration Leading Is Not Optimal
The primary problem here is there is no structural accelerant if the Federal Aviation Administration is holding up a license or a mission. The administration’s focus on safety is a necessary consideration for every launch, but is not sufficient. Additionally, the Federal Aviation Administration at times becomes overwhelmed with its responsibilities as it is, and adding missions far outside its current scope is a recipe for disaster. Safety is the most important consideration, and the agency responsible for it should optimize for attending to it.
Recommendation
Congress should consolidate the regulatory regime for space mission authorization under the Department of Commerce. The primary goal is to foster growth and innovation in the commercial space industry while ensuring all other considerations like safety and spectrum allocation continue to receive proper attention. In this new framework, companies would submit a single application to a single point of contact within the Department of Commerce: the Office of Space Commerce. The processes relevant to continuing supervision, safety, launch and reentry, and spectrum will continue in their current form but under an interagency process led by the Department of Commerce. For example, the Federal Aviation Administration would continue to sign off on launch and reentry, but it would do so as part of the Department of Commerce’s interagency process for each application. The Federal Communications Commission and the National Oceanic and Atmospheric Administration would likewise retain their authorities in a similar arrangement. Input and cooperation from these agencies are crucial for responsible growth of the commercial space industry, but the Office of Space Commerce should manage the process from application to final licensing.
Some novel missions would still require updates to requirements on the company, but with this form of consolidation, such changes can be part of the process. The manager of these would be the Office of Space Commerce under the authority of the commerce secretary. This means it is one office to which a company submits its novel designs and intentions, and one office (in consultation with the interagency) responsible for making decisions, approved by the secretary of commerce, resolving ambiguities.
To do this, Congress should enable the growth of the Office of Space Commerce and elevate it to a position parallel to the National Oceanic and Atmospheric Administration within the Department of Commerce. The head of this office would be the undersecretary for space commerce and would report directly to the secretary. Congress should also eliminate prohibitive fees for commercial applicants, since they disproportionately impact smaller companies and those prospective space entrepreneurs who view them as prohibitive.
This places responsibility for processing mission applications with the Office of Space Commerce. This office would develop the application to include all information required by other agencies. It would provide the applicant with updates, requests for information from other agencies, upcoming requirements, and the like. It would ensure other agencies maintain situational awareness of timelines, customer (i.e., company) change requests, and so forth. All correspondence can occur via portal accessible by all stakeholders. It is not uncommon today for companies to contract consultants to interface with the relevant agencies and track all of this. A single contact point will reduce these costs or eliminate them entirely, improve transparency, and encourage a shared understanding among everyone involved.
Consolidating the space mission authorization regime under the Department of Commerce in this way enables regulators to keep pace with industry. It helps ensure government regulations retain the character of facilitating commercial progress rather than inhibiting it. It also ensures other agencies, like the Federal Aviation Administration, continue to leverage their experience and authorities in support of space missions — it does not cut any other agency out of the process. Until recently, the generally permissive outcomes produced by the current regime allowed industry to overcome the nebulous process required of them and dominate the field. But if the United States wants to continue to lead as space missions continue to evolve, the regulatory regime should evolve along with it. Over the coming decades, innovative ideas such as nuclear-powered spacecraft, space-based solar power, regular human space exploration, resource mining, etc., will become operational. Investors and innovators seeking to turn these ideas into reality will need to have assurances provided by an approval system that provides a predictable regulatory environment. This requires a simplification, not necessarily a reduction, of government oversight. It is time for an update, and this is a feasible, innovation-oriented reform that will enable companies operating in space to focus less on the administrative process and more on achieving their goals.
Zeke Clayson is an active-duty U.S. Army space operations officer. The views expressed here do not reflect those of the Army or the Department of Defense.
Frank Spellman is a BryceTech program analyst, supporting the National Aeronautics and Space Administration’s Space Technology Mission Directorate.
Shiv Patel is the lead government affairs strategist at SpinLaunch.
Dan Shen was a U.S. Navy submarine officer and is now an analyst for a submarine science program.
The Defense Innovation Unit is a client of the authors for a project relating to this research. The authors recently presented a version of this paper to a workshop for the 2023 State of the Space Industrial Base.
Image: NASA
