Yesterday, TechFreedom filed comments in response to the Federal Communications Commission’s (FCC) Notice of Proposed Rulemaking (NPRM) seeking comment related to the Commission’s role in regulating the developing in-space servicing, assembly, and manufacturing (ISAM) industry. While no one questions the FCC’s authority over spectrum licensing, it lacks a mandate to regulate general, non-communication activities in space. Previous efforts by the Commission to bootstrap a general authority over non-communications activities have failed, suggesting this one will as well.

“The FCC’s regulatory powers over space operations are limited,” said James E. Dunstan, TechFreedom’s Senior Counsel. “No one would contest the FCC’s primary jurisdiction over frequency allocations and licensing for U.S. entities providing communications services via space. Nevertheless, the ISAM NPRM contemplates that the FCC will take the regulatory lead on ISAM activities, which look very different from traditional communications satellites. The ISAM NPRM merely points to the general ‘public interest’ provisions of the Communications Act, even though this is only applicable to the FCC’s role in regulating communications facilities, whether on Earth or in space. The bulk of the ISAM NPRM, however, focuses on regulating ISAM activities, not communication services, thus misreading the public interest standard as a further grant of substantive regulatory authority.” 

“The NPRM fails to establish the FCC’s expertise over ISAM activities,” Dunstan continued. “No reference is made to FCC experience in actually conducting rendezvous and proximity operations (RPO), in-space servicing, assembly, or manufacturing, because it doesn’t exist. This is in sharp contrast to other agencies, which have shown experience and expertise in this area. In short, the FCC is proposing to regulate things that none of its staff has ever done and is asking for paid on-the-job training.”

“Get the regulatory approach wrong, and the ISAM industry will simply move offshore,” Dunstan concluded. “Space is inherently international, and if we do not provide a practical regulatory system that can efficiently authorize and supervise the activities of U.S. nationals in space, two things will happen. First, domestic companies will simply move offshore and find a country that will quickly and cheaply grant them authorization for their outer space activities. Second, regulatory schemes that are characterized by high degrees of friction will hamper the U.S. space economy, and thus advance the interests of our adversaries.”


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