Yesterday, TechFreedom filed comments in response to the FCC’s request to refresh the record on rule changes pertaining to orbital debris mitigation. The most important change since the record closed in late 2020 is in the question of agency authority. Courts today seem much less likely to defer to agency decisions when the agency strays from its statutory mandate. 

“The FCC’s statutory authority over orbital debris is shakier than ever,” said James E. Dunstan, TechFreedom’s Senior Counsel. “The FCC has embarked on an unprecedented quest to regulate outer space, despite persistent concerns it may be overstepping its authority. These warnings have come from other executive agencies as well as the congressional committee with direct oversight over space activities. Given recent court decisions constraining any agency’s ability to read in new or expanded authority under its enabling statute, it’s doubtful that a court today would conclude the FCC can merely recite the ‘public interest’ standard to justify this reach into outer space on issues unrelated to spectrum and interference.”

“The Commission should regulate by rules, not ad hoc conditions on licenses,” Dunstan continued. “The Commission has reacted to the development of the space economy not by promulgating new rules to recognize these changes, but rather by imposing more and more conditions on licenses. While conditions on licenses are a common practice in FCC licensing, in most services those conditions are limited, applied consistently across licensees, and are generally tied to clear, specific rules that everyone can understand. However, each new space license appears to come with increasingly numerous conditions, often citing vague rules or policies, or involving negotiated agreements between applicants and FCC staff to address gaps in Commission rules.”

“The Commission should use this opportunity to establish that NEPA doesn’t apply to outer space,” Dunstan concluded. “If the goals of this proceeding are to provide clarity and certainty for licensees, as well as speed the licensing process, the FCC should take this opportunity to once and for all make clear that the National Environmental Policy Act (NEPA) does not apply to outer space. They should also emphasize that opponents of specific systems, and commercial space activities in general, cannot weaponize NEPA to stop or slow down innovative uses of outer space.”


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