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Echostar Corporation; Intelsat SA Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 ) In the Matter of ) ) Mitigation of Orbital Debris in the New ) IB Docket. No. 18-313 Space Age ) ) ) REPLY COMMENTS OF THE SATELLITE INDUSTRY ASSOCIATION The Satellite Industry Association (“SIA”)1,2 hereby submits this reply to the comments in response to the Federal Communications Commission’s (“FCC” or “Commission”) Further Notice of Proposed Rulemaking (“Further Notice”)3 addressing the mitigation of orbital debris in the New Space Age.4 SIA strongly supports the measures which seek to promote the 1 SIA Executive Members include: Amazon; AT&T Services, Inc.; The Boeing Company; EchoStar Corporation; Intelsat S.A.; Iridium Communications Inc.; Kratos Defense & Security Solutions; Ligado Networks; Lockheed Martin Corporation; OneWeb; SES Americom, Inc.; Space Exploration Technologies Corp.; Spire Global Inc.; and Viasat Inc. SIA Associate Members include: ABS US Corp.; AIRBUS U.S. Space & Defense, Inc.; Amazon Web Services; Analytical Graphics, Inc.; Artel, LLC; Astranis Space Technologies Corp; Blue Origin; Eutelsat America Corp.; ExoAnalytic Solutions; HawkEye 360; Hughes; Inmarsat, Inc.; Kymeta Corporation; Leonardo DRS; Lynk; Omnispace; OneWeb Satellites; Panasonic Avionics Corporation; Peraton; Planet; Telesat Canada; and XTAR, LLC. For more information on SIA, see www.sia.org. 2 This reply is supported by all SIA members except for Iridium Communications, Inc., which does not join with respect to Section III (post-mission disposal bond). 3 Mitigation of Orbital Debris in the New Space Age, Report and Order and Further Notice of Proposed Rulemaking, 35 FCC Rcd 4156 (2020) (“Further Notice”). 4 Unless otherwise noted, all filings were made in IB Docket No. 18-313 in response to the Further Notice. 1 sustainability of outer space, as outlined in SIA’s Principles of Space Safety5 and White Paper on The Future of Space and Space Traffic Coordination and Management.6 As such, SIA broadly supports maneuverability adequate to respond to a conjunction warning for satellites above 400 kilometers, noting that in the 400-600 kilometer range, additional consideration should be given to implementation which supports innovation involving experimental satellites used for research and academics. The Commission, however, should refrain from adopting its indemnification and bond proposals, as the record has not demonstrated that they will deter the creation of orbital debris, but would instead result in the imposition of unnecessary regulatory burdens and costs. I. THE COMMISSION SHOULD ADOPT MANEUVERABILITY REQUIREMENTS ABOVE 400 KILOMETERS SIA supports the establishment of a set of requirements for non-geostationary orbit (“NGSO”) satellites to include maneuverability for station-keeping and collision avoidance. Such measures would distribute the burden of collision avoidance maneuvers among operators and also enhance space safety in the low-Earth orbit (“LEO”) region, especially as a number of spacecraft specific factors such as satellite size, satellite mass, capability and reliability; constellation factors such as number of satellites and orbit selection; and operational factors such as space situational awareness and management influence space safety and the projected growth of objects in LEO over the coming decades. 5 Principles of Space Safety, Satellite Industry Association, October 22, 2019, https://sia.org/policy/space-debris-mitigation-sustainability/. 6 Satellite Industry Association White Paper: The Future Of Space and Space Traffic Coordination and Management, September 24, 2020, https://sia.org/wp- content/uploads/2020/09/REVISED-White-Paper20-STCM-Sept-23rd-V1.0.pdf. 2 Preserving a safe environment in LEO must be the Commission’s top priority, not only for safe operations of spacecraft and human habitats, but also for maintaining safe access for launches delivering satellites to higher orbits including medium-Earth orbit, geostationary orbit (“GSO”) and beyond. Objects occupying orbits above 400 kilometers, including fragments from unintended collisions, can stay on orbit for decades in some cases. Thus, an effective means of maneuverability that is adequate to respond to a conjunction warning within an actionable timeframe for any satellite system operating above 400 kilometers is strongly recommended for collision avoidance and end of life disposal. The region between 400 and 600 kilometers needs careful consideration given the multitude of current and potential actors and mission types operating in this space including human occupied space stations, very large NGSO constellations, smaller NGSO constellations, cubesats, amateur satellites, experimental satellites, and others. SIA urges the Commission to strike a balance in order to ensure a safe space environment, while enabling innovation involving experimental satellites used for research and academics. II. THE PROPOSED INDEMNIFICATION REQUIREMENT EXCEEDS THE COMMISSION’S TITLE III AUTHORITY AND WOULD BE CONTRARY TO THE PUBLIC INTEREST. Commenters overwhelmingly agree, and the record reflects, that the Commission “lacks authority under [Title III of] the Communications Act to adopt an indemnification requirement,”7 or any other financial requirement for licensees to fund U.S. treaty obligations. As Intelsat explains, “the Commission can only exercise authority held exclusively by Congress if that 7 See SIA Comments at 6. 3 authority is delegable and Congress has delegated it to the agency through legislation.”8 Commenters also agree that “authority held exclusively by Congress” includes the authority necessary for the Commission to impose a license condition to fund the United States’ treaty obligations by indemnifying the government.9 For that reason, Intelsat explains that “the Commission may only take steps that would serve to implement a U.S. treaty obligation imposing financial obligations on the government pursuant to legislation that provides a role for the FCC in that implementation.”10 No such legislation exists. Absent such an express delegation, “[t]he FCC, like other federal agencies, ‘literally has no power to act.’”11 While the Commission proposed in the Further Notice to rely on its Title III authority to impose an indemnification requirement,12 this statutory section “fails to identify a sufficient legal basis.”13 Title III “does not provide the Commission the statutory delegation of authority necessary to impose a direct financial obligation on U.S. licensees on behalf of the United States.”14 Rather, the only express delegation of power made to the Commission under Title III is its licensing authority.15 Additionally, several commenters affirm that adopting an indemnification requirement “would run counter to Congress’s long-standing practice of 8 Comments of Intelsat License LLC at 5 (“Intelsat Comments”). 9 Id.; SIA Comments at 6-7. 10 Intelsat Comments at 5 (emphasis added). 11 Comments of Hogan Lovells US LLP at 18 & n.26 (“Hogan Lovells Comments”), citing Am. Library Ass’n v. FCC, 406 F.3d 689, 698 (D.C. Cir. 2005) (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)). 12 Further Notice at ¶ 180. 13 Comments of Spire Global, Inc. at 11 (“Spire Comments”). 14 Comments of AT&T Services, Inc. at 10 (“AT&T Comments”). 15 Id. 4 supporting the growth of certain industries deemed critical to national security by limiting private sector liability,” even in the event that Title III was stretched to include the authority to do so.16 Commenters also agree that the Commission possesses ample remedies to more effectively recover from licensees in the event that a third-party claim is successfully brought against the United States. The satellite industry recognizes that the Commission can exercise its enforcement authority “to assess forfeitures against any licensee that willfully or repeatedly fails to comply substantially with the terms and conditions of its license, the Commission’s rules, or the Communications Act.”17 Additionally, “general case law, a major treatise, and at least one case involving a bi-lateral treaty agreement between the U.S. and Canada support[] the conclusion that the U.S. government has the authority to seek contribution, recovery or apportionment from liable private parties.”18 These enforcement and civil remedies are “practical, precedented, and do not require licensees to bear any new or unnecessary financial obligations.”19 Commenters also express considerable concern that, regardless of the Commission’s legal authority, an indemnification requirement would have a substantial chilling effect on the 16 SIA Comments at 7; see also Intelsat Comments at 12 (“Specifically…Congress has taken express steps to protect U.S. operators of commercial launch vehicles and nuclear facilities from bearing too much liability risk.”); Hogan Lovells Comments at 5 (“where Congress saw a need to balance the liability between the U.S. government and private U.S. actors…Congress specifically adopted legislation.”). 17 SIA Comments at 8. 18 Comments of the Boeing Company at 19 (“Boeing Comments”). 19 AT&T Comments at 11 5 U.S. satellite industry.20 BlackSky observes that “[i]f faced with such a burdensome [U.S.] regulatory environment, the [U.S.] space industrial base would shrink dramatically and or move its operations overseas.”21 Similarly, the Consortium for Execution of Rendezvous and Servicing Operations observes that the imposition of a perpetual indemnification “would truly stifle the commercial satellite industry.”22 Importantly, commenters affirm that this
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