WASHINGTON — A recent U.S. Supreme Court ruling could upend efforts by the Federal Communications Commission to enforce more stringent orbital debris regulations.
The FCC passed in September 2022 new rules that require satellite operators to deorbit their satellites within five years of their of the missions, rather than 25 years as had been required. The rules would take effect this September and apply to any satellites launched after that date that are either licensed by the FCC or seek U.S. market access through the commission.
Those rules, though, face a challenge from the Supreme Court ruling in June on the case Loper Bright Enterprises v. Raimondo. That ruling struck down the principle widely known as “Chevron deference” from another Supreme Court case decades earlier that gave agencies greater latitude, or deference, to interpret ambiguities in laws enforced by them.
There is no federal law that explicitly authorizes the FCC, or other agencies, to establish and enforce debris mitigation rules. The FCC has argued since it first adopted such rules two decades ago that its authority stems from the Communications Act of 1934, which directs the FCC to encourage “the larger and more effective use of radio in the public interest.” Orbital debris, the commission explained, can negatively affect that effective use of radio in the public interest, thus giving it the authority to enact rules to mitigate it.
Some, though, believe that might not be explicit enough now that Chevron deference is no longer in place. “That’s a pretty broad statement, and some would say it’s a leap to apply that to orbital debris for an agency that is supposed to be regulating communications,” said Jason Kim, chief of staff in the Office of Space Commerce, during a session at the recent AIAA ASCEND conference.
“There is risk that someone might come along and now sue the FCC based on the precedent set by the Chevron deference rule being overturned,” he continued. “I’m not advocating for that. It would create a lot of chaos for our industry.”
No company has publicly expressed interested in taking the FCC to court to overturn orbital debris regulations on those grounds. However, some companies have pushed back in FCC proceedings on those rules, including several who argued that requirements like the new five-year rule “diverge substantially” from other U.S. government guidance. The FCC rejected those criticisms in an order on reconsideration it adopted unanimously in January.
Even before the FCC approved the five-year rule in September 2022, some in Congress questioned the commission’s authority to regulate on the topic. A letter from the bipartisan leadership of the House Science Committee just before the FCC vote on the rule argued that the FCC lacked “clear authority from Congress” for such regulations that could “create confusion and undermine the Commission’s work.”
The case, at the very least, creates uncertainty about such regulations. “I would personally be curious how the FCC can continue to propose rulings or if they will still be able to implement orbital debris mitigation rules,” Kristin Shahady, business development manager at satellite servicing company Astroscale, said on the ASCEND panel.
The solution, Kim argued, is for Congress to end that ambiguity. “Congress has to step up and specifically name a federal agency that is going to be responsible for regulating orbital debris mitigation,” he said, without advocating for a specific agency.
That could be tied to ongoing debates about “mission authorization,” or the oversight of non-governmental space activities not currently regulated by the FCC, Federal Aviation Administration or the Office of Space Commerce. There has been little public progress on the issue since the White House offered its mission authorization proposal last November that would split mission authorization between the FAA and Office of Space Commerce, and a House bill introduced around the same time that would give that responsibility instead entirely to the Office of Space Commerce.
“Setting aside which agency that will be,” Kim said of mission authorization, “you would ideally want to put in the orbital debris mitigation regulatory authority into that kind of legislation. Now that Chevron deference has been overturned, we probably need to focus on that pretty urgently to avoid that chaos.”
Another official from the Office of Space Commerce offered a similar assessment. “If regulators in the United States are going to regulate something, they have to have very clear legal authority to do so,” said Gabriel Swiney, director of the office’s policy, advocacy and international division, referring to the Supreme Court decision during a panel at the Summit for Space Sustainability in July. “It means Congress really does need to act.”
He also took no position on which agency should have responsibility for mission authorization or space sustainability regulations. “What’s more important than who has it is that someone does. Having the legal ability to regulate sustainability, respond to emerging challenges that we almost certainty are not anticipating right now, is really critical,” he said. “We’ve jury-rigged the system we have up until now, but at some point that will become increasingly difficult, if not impossible.”