WASHINGTON D.C. — Yesterday, Reuters broke the news that the Federal Aviation Administration’s Office of Commercial Space (FAA/AST) had taken a first step toward approving Bigelow Aerospace’s planned mission to the Moon. Specifically, the FAA committed to “leverag[ing] the FAA’s existing launch licensing authority to encourage private sector investments in space systems by ensuring that commercial activities can be conducted on a non-interference basis.”

“It’s high time the United States recognized effective space property rights,” said Berin Szoka, president of TechFreedom. “The FAA’s approach is fully consistent with international law, as the 1967 Outer Space Treaty recognizes the right to freely explore and use space without interference. This is the essence of any system of private property rights. The Treaty does bar appropriation of celestial objects, whether by nations or private parties, but the FAA doesn’t purport to grant Bigelow any exclusive rights to the land under which it conducts future lunar activities — only the exclusive right to operate at that location.”

“But the FAA has overstepped its authority,” warned Jim Dunstan, a TechFreedom Senior Adjunct Fellow and founder of Mobius Legal Group. “When the FAA says it intends to ‘leverage’ its existing launch licensing authority, it really means ‘exceed’ that authority. The FAA’s jurisdiction is limited to launch or reentry of a vehicle and the safety issues raised by its payloads.” Reuters pointedly notes the State Department’s concerns that the “national regulatory framework, in its present form, is ill-equipped to enable the U.S. Government to fulfill its obligations under the Outer Space Treaty….”

“Congress alone can create a governance structure for space commerce that satisfies U.S. treaty obligations but also avoids stifling regulation,” argued Szoka. “The Treaty isn’t self-executing: it requires all nations to provide ‘ongoing supervision’ of private activities in space through legislation. Executive action alone won’t suffice. Lawmakers will first need to decide which agency is best positioned to govern space commerce that without becoming an unnecessary drag — the FAA, FCC or Commerce, which already have jurisdiction — or whether to consolidate regulatory oversight into an independent, streamlined office for space commerce. Ultimately, legislation will need to address not only interference involving U.S. companies but foreign firms as well. Re-opening the Treaty could embolden those abroad who’ve tried to ban private property in space under the 1979 Moon Agreement, which the Senate wisely refused to ratify. Instead, Congress should do what it did for deep seabed mining that same year: authorize a system of interlocking national laws. The principle is simple: we’ll recognize the non-interference rights of foreign companies if their governments recognize American companies’ rights, too.”

“Bigelow is only the beginning,” concluded Dunstan. “Several American companies plan to mine asteroids. They all need certainty that they can operate without interference and that they will own whatever resources they extract from celestial bodies. Back in 2004, Congress overwhelmingly passed legislation that has allowed commercial human spaceflight to take off under the FAA’s regulatory light touch. Congress needs to do the same now for regulating entrepreneurial activities in space. Otherwise, a confusing or burdensome U.S. regulatory environment could allow other countries take the lead on space commerce — which has been the perverse result of our outdated export control laws. There’s every reason for legislation to be bipartisan. Politics should stop at the atmosphere’s edge.”

Szoka and Dunstan can be reached for comment at media@techfreedom.org. Both are long-time space lawyers; Dunstan has practiced space law for over thirty years. See more of their work on space property rights, including:

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