A very British coup: Lessons from the draft UK regulations for CubeSats
A comparative view and possible lessons for other actors
As demonstrated above, the UK recommendations to abridge the regulatory structure for CubeSats represents a centralized, coordinated effort to address the growing proliferation of commercial CubeSats. To the extent that the proposed UK regulatory structure is designed to streamline the approval process for CubeSats, a comparative look at the regulatory structure the United States employs to approve CubeSats appears to already meet that end.
The United States boasts the largest contingent of commercial CubeSat operators, but lacks a centralized system like the proposed UK regulatory structure to license and regulate CubeSats. This lack of a centralized authority stems not from a lack of attention to growing use of CubeSats, but rather it is a result of national space policy. Specifically, the current National Space Policy states as one of its principles that:
The National Space Policy goes on to direct US agencies to:
The National Space Policy follows a similar tenor of its predecessors, starting with the Reagan Administration’s National Space Policy of 1982, which first facilitated commercial space activities. Since this inception of the concept, national space policy has directed regulation be subordinated to technological and commercial development, including the development and deployment of CubeSats by the commercial sector. That is not to say CubeSat regulation is non-existent. Both the United States and the UK have an international legal responsibility under Article VI of the Outer Space Treaty for activities of private and commercial actors under their respective jurisdictions and as mentioned beforehand retain liability for those actors pursuant to Article VII of the Outer Space Treaty and, by extension, Articles III and IV of the Liability Convention.
As an extension of that responsibility Congress passed the Commercial Space Launch Act of 1984, which evolved into the current statutory body of law under 51 U.S.C. §§ 50101–51105 and specifically the authority of the Federal Aviation Administration (FAA) to issue commercial launch licenses under 51 U.S.C. §§ 50901–50923 and the subsequent regulations under 14 CFR §§ 400.1–401.5. Nevertheless, the statutory and regulatory authority granted to issue launch licenses under these sections is broad and not specific to any particular vehicle or payload, including CubeSats. Commercial and other non-government CubeSats within the United States, unlike the proposed UK CubeSat regulations, are regulated and licensed in a decentralized manner based on function by the executive agency with the statutory jurisdiction to administer that function.
For instance, the Secretary of Commerce, pursuant to 51 U.S.C. § 60121, is authorized to license private sector parties to operate private remote sensing space systems for such period as the Secretary may specify and in accordance with the provisions of United States law. This authority is delegated by the Secretary of Commerce to the National Oceanographic and Atmospheric Administration (NOAA) and requires any private entity under the jurisdiction of the United States to obtain a license to operate a private remote sensing system, which includes a private/commercial CubeSat that will employ a remote sensing capability.
To obtain and maintain an operating license from NOAA, a CubeSat operator of a remote-sensing platform must comply with 51 U.S.C. § 60122(b) and 15 CFR 960.11, which covers collection and dissemination of remote sensing data and orbital debris mitigation, to include operating the system in such manner as to preserve the national security of the United States and to observe the international obligations of the United States;37 making available to the government of any country (including the United States) unenhanced data collected by the system concerning the territory under the jurisdiction of such government as soon as such data are available and on reasonable terms and conditions; make unenhanced data available to NOAA; upon termination of operations under the license, make disposition of any satellites in space in a manner satisfactory to orbital debris mitigation guidelines; furnishing NOAA with complete orbit and data collection characteristics of the system, and immediately inform NOAA of any deviation; and notifying NOAA of any significant or substantial agreement the licensee intends to enter with a foreign nation, entity, or consortium involving foreign nations or entities.38
Conversely, private CubeSats whose purpose involves the use of radio spectrum are required to comply with regulations of the Federal Communications Commission (FCC). Until recently, most of the FCC regulations associated with CubeSats related to the amateur radio service under 47 CFR 97.207, where a permitted amateur radio licensee may operate a “space station” within authorized frequencies.39 It is noteworthy the permit of a CubeSat for amateur operations is not a license per se, but rather a permission to an FCC licensed amateur to operate a “space station” (CubeSat).
The license grantee of permission for operation of a CubeSat must comply with 47 CFR 97.207(g), which is heavily focused on orbital debris mitigation, and requires the permit holder to make written notifications to the international branch of the FCC to make several statements to include: that the space station licensee has assessed and limited the amount of debris released in a planned manner during normal operations; and has assessed and limited the probability of the space station becoming a source of debris by collisions with small debris or meteoroids that could cause loss of control and prevent post-mission disposal; that the space station licensee has assessed and limited the probability of accidental explosions during and after completion of mission operations;40 that the space station licensee has assessed and limited the probability of the space station becoming a source of debris by collisions with large debris or other operational space stations; provide a detailed post-mission disposal plan for the space station at end of life, including the quantity of fuel, if any, that will be reserved for post-mission disposal maneuvers; and if any material item described in the notification changes before launch, which mandates that a replacement pre-space notification be filed with the International Bureau of the FCC no later than 90 days before integration of the space station into the launch vehicle.
As has been noted already, CubeSats and other smallsats are becoming more commonplace in the commercial sector, especially with proposed constellations such as OneWeb. The FCC regulates commercial satellites and, by extension, CubeSats through existing federal regulations, including 47 CFR §§ 25.101–25.701, which regulates satellite communications and, specifically, 47 CFR §§ 25.140–25.149, which focuses on technical standards and operations. The FCC addresses orbital debris mitigation for commercial satellites and CubeSats under 47 CFR § 25.114(d)(14) and requires operators to provide a description of the design and operational strategies that will be used to mitigate orbital debris, which are similar to the requirements of amateur-class CubeSats under 47 CFR 97.207(g).41
Private/commercial CubeSats will continue to proliferate and occupy a greater portion of the radio spectrum, prompting calls for more coordination in applying for and providing frequency information with the International Telecommunication Union (ITU).42 This is one potential area where the FCC could amend its regulations regarding CubeSats to ensure compliance with ITU mandates and avoid future spectrum interference. For the time being, CubeSat regulation in the United States will follow the lead of the National Space Policy and regulation will thus remain decentralized and utilize the existing regulatory framework while still providing a permissive regulatory environment as envisioned by the proposed UK CubeSat regulations. Even though CubeSat regulations are decentralized in the United States, they do mirror and address some, if not all, of the concerns relevant to the proposed UK regulations, and in essence parallel each other, even though the proposed UK regulations are consolidated in one agency versus multiple agencies in the US.
American obligations under Article VI of the Outer Space Treaty of 1967 may require the US to revisit its decentralized approach to CubeSat regulation in the future.43 As private, commercial use of CubeSats becomes more prolific and certain orbits become saturated, the United States may have to reconsider its approach and designate one agency to issue a license to a private operator and require that agency to coordinate with other agencies, such as NOAA and the FCC, as necessary. Complicit with centralization could be standard regulations and requirements for CubeSats consistent with the proposed UK regulations.
It is ironic that the approach of the UK, based on its relatively recent engagement in space activity, could well serve as a model for the United States. Whether such a centralized approach is necessary or desirable is contingent on the tone of future national space policy, Congressional legislation, and subsequent regulation. However, unless there is strong international pressure, and presuming the treatment of commercial space activity vis-à-vis national space policy remains relatively unchanged, the United States will likely resist the centralized approach taken by the proposed UK regulations. Instead, they will allow the responsible agencies to modify their regulations to address the growing CubeSat population and future space traffic management and the liability associated with it.44
Apart from the regulatory approach for CubeSats used by the United States, emerging spacefaring nations might see CubeSats as an economical means to join the commercial space race. If that is the case, the proposed UK CubeSat regulations would be an attractive model for a regulatory scheme to meet their respective obligations under the Outer Space Treaty and other international accords they are party to, and provide a permissive regulatory environment to facilitate commercial CubeSat development. Consequently, the UK is sure to have an international audience observing the implementation and enforcement of the proposed regulatory structure and might find itself as the focal point of private CubeSat regulation much in the way the United States is the focal point for the creation of the legal and regulatory regime for commercial launch and spaceflight.
Beyond serving as a model for national regulatory schemes, the proposed UK regulations might also form the basis of a non-binding international norm for CubeSats. As a result, the UK’s domestic approach to CubeSats might bring about a bottom-up rule that is adopted as an international non-binding norm for other nations to emulate, if not adopt outright, similar to how NASA’s Orbital Debris Mitigation Guidelines have been adopted by the United Nations and subsequently state actors. To that end, the UK might keep in mind not only other interested nations will be looking over their shoulder, but the international community as well.
Examining the UK and US approaches in a side-by-side fashion is illuminating, illustrating the different directions taken by the two nations to manage their obligations under the Outer Space Treaty. The UK Space Agency is part cheerleader and part regulator, and has roles undertaken by both NOAA and the FCC in the US, albeit on a much smaller scale. Given its relatively late entry into space manufacturing, the UK regulatory model is much more a product of revolution rather than the evolution that has emerged in the United States.
As identified above, the move to a centralized, light-touch regulatory model in the US would provide a number of key advantages at a relatively low cost and with little practical intrusive impact. Such an approach would not be incompatible with the National Space Policy, serve to act as a focal point for the developing CubeSat industry, and future-proof the United States from regulatory intrusion at a later date. That's not to say that the US should follow the regulatory lead of the UK, but its policy, legislative, and regulatory organs should keep an open mind to a different approach to CubeSat regulation if the current system proves unmanageable.
While the regulations are only in draft form at the moment, there is little doubt that a consultation with UK stakeholders will yield a positive response. Properly implemented, the UK’s proposed CubeSat regulations should provide a conducive environment for private/commercial CubeSat development in the UK. Notwithstanding the decentralized approach of the United States, (and given the increased engagement of the UK with ESA and other international space actors), the proposed UK regulatory scheme will stand on its own and provide a model for other state actors seeking to implement their own domestic CubeSat regulatory scheme.