U.S. Commercial Space Regulation: The Rule of Three

• Author: John S. Goehring
• Position: Space and national security law attorney for the Department of Defense and a judge advocate in the United States Air Force Reserve
• Pages: 337-354

ARTICLES

U.S. Commercial Space Regulation: The Rule

of Three

John S. Goehring*

INTRODUCTION

The rule of three, it is proposed, is the idea that an ideal commercial space reg-

ulatory environment is one that satisfies three policy objectives: promote industry

growth, satisfy international obligations, and preserve national security. The rule

of three provides a framework both for understanding and designing commercial

space regulatory environments and for assessing whether they are adequate and

effective or, instead, deficient and unable to meet policy goals.

Part one of this paper provides a brief background on the existing regulatory

regimes that comprise the broad commercial space regulatory environment. It

explains which space activities are covered, with a focus on the activities of pay-

loads on orbit. It discusses the role of the Federal Communications Commission

(FCC) in the regulation of frequency use and the role of U.S. Department of

Commerce’s National Oceanic and Atmospheric Agency (NOAA) in the regulation

of private remote sensing. In addition, it identifies regulatory gaps and discusses a

potential stop-gap regulatory measure known as the Mission Authorization frame-

work for near-future or otherwise unregulated space activities.

Part two describes the components of the rule of three and their derivation.

These three components are not novel. Rather, they are drawn from recent space

policies and applicable international law, particularly Space Policy Directive 2,

Streamlining Regulations on Commercial Use of Space, issued in 2018; the

National Space Policy, issued in 2020; the Space Priorities Framework, issued in

2021 under the Biden Administration; and the Outer Space Treaty of 1967.

1

Part three applies the rule of three to two case studies: commercial remote

sensing and commercial radiofrequency (RF) collection. It argues the commercial

remote sensing regulatory environment is sound and effective because each of

* John S. Goehring is a space and national security law attorney for the Department of Defense and a

judge advocate in the United States Air Force Reserve. The views expressed are solely that of the author

and do not reflect the position of the U.S. Government, the Department of Defense, or the Air Force.

This article has been published without exclusive rights in the Proceedings of the 2022 Advanced Maui

Optical and Space Surveillance Technologies (AMOS) Conference. © 2023, John S. Goehring.

1. PRESIDENTIAL MEMORANDA ON SPACE POLICY DIRECTIVE-2 29901 (2018) [hereinafter SPD-2];

PRESIDENTIAL MEMORANDA ON THE NATIONAL SPACE POLICY 81755-56; duplicative (2020) [hereinafter

2020 NSP]; THE WHITE HOUSE, UNITED STATES SPACE PRIORITIES FRAMEWORK 5 (2021) [hereinafter

SPACE PRIORITIES FRAMEWORK]. Treaty on Principles Governing the Activities of States in the

Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies art. VI, January 27,

1967, 19 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].

337

the three policy objectives are satisfied and appropriately balanced. The commer-

cial RF regulatory environment, by contrast, has regulatory gaps that undermine

the rule of three, thereby hindering the ability of the United States to achieve its

stated policy goals. These case studies demonstrate how current and future com-

mercial space regulatory environments can be evaluated by whether they reflect

and adhere to the rule of three.

The conclusion offers three observations drawn from the case studies that can

aid policy makers in the application of the rule of three.

I. U.S. COMMERCIAL SPACE REGULATORY MECHANISMS AND GAPS

A. Licensing Mechanisms

The domestic commercial space regulatory regime in the United States comes

in two general categories: regulation of launch and regulation of payload operations.

2

The Department of Transportation, through the Federal Aviation Administration

(FAA), regulates commercial space launch. The FCC and the Department of

Commerce implement the current regulatory regimes for payloads.

The FCC regulates the use of frequencies. It is an independent government

agency overseen by Congress and authorized under the Communications Act of

1934, as amended, to regulate communications, including satellite communica-

tions.

3

An FCC license is required for the “transmission of energy or communica-

tions or signals” by space stations (which is to say, by satellites).

4

In effect, every

commercial U.S. satellite requires an FCC license because every satellite requires

the ability to transmit command and control signals with a ground station in order

to operate. In addition to regulating which frequencies satellites use to communi-

cate, FCC licenses also impose conditions to mitigate the creation of orbital de-

bris.

5

The FCC’s authority to impose orbital debris mitigation plans derives from

its statutory obligation to regulate radiocommunications in a manner that encour-

ages the effective use of radio in the public interest.

6

The Department of Commerce, through NOAA, regulates private remote sens-

ing. The basis for domestic regulation of private remote sensing in the United

States is the Land Remote Sensing Policy Act of 1992.

7

The Act authorizes the

Secretary of Commerce to license private sector parties to operate private remote

sensing space systems.

8

The law requires any person under the jurisdiction or

control of the United States, either directly or through a subsidiary or affiliate, to

2. Susan Trepczynski, New Space Activities Expose a Potential Regulatory Vacuum, 43 REPORTER

12, 14 (2016).

3. Communications Act of 1934, 47 U.S.C. §§ 151–614.

4. 47 C.F.R. § 25.102(a) (1991).

5. Mitigation of Orbital Debris in the New Space Age, 86 Fed. Reg. 52,101, 52,101 (Sept. 20, 2020)

(to be codified as 47 C.F.R. pts. 5, 97).

6. See U.S. FED. COMMC’N COMM’N, FCC-CIRC2004-3, MITIGATION OF ORBITAL DEBRIS IN THE

NEW SPACE AGE, REPORT AND ORDER AND FURTHER NOTICE OF PROPOSED RULEMAKING 8 (2020)

(providing FCC’s analysis of its statutory authority extending to debris mitigation).

7. Land Remote Sensing Policy Act of 1992, Pub. L. No. 102-555, 106 Stat. 4163.

8. 51 U.S.C. § 60121(a)(1).

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