Space Alert Volume VI, Issue 2 – April 2018 ORF Quarterly on Space Affairs CONTENTS FROM THE MEDIA COMMENTARIES FROM THE MEDIA Isro will launch Chandrayaan-2 in Oct 1st week A Swarm of Legal Issues Launched by First afterISRO’s tests: ChiefMars DrMission K Sivan Successful, India Rogue Satellites ISROMakes experimenting History with potential structures Ashok G.V. forISRO lunar Inkshabitation: Deal with Min China for Space It was reported that four small satellites were Isro,India DoT Offers turf wars Outer delaying Space connectivity Expertise reach: to operating in space without a license. However, DoTBangladesh Official these reports emerging in public domain are 'India'sU.S. GPS'Dismisses Delayed Space by Deadline Weapons Overruns, Treaty yet to clarify the critical question of how such Proposal as “Fundamentally Flawed” an unauthorised space object cleared U.S. ISRO's 'Administrative Laxity': CAG border area and made it all the way to orbit. ChinaNASA to offer Plans commercial to Send recoverable Submarine satellites to Saturn’s Moon New Space and the Geoeconomic Space in next two years: Xinhua China’s Long March 5 heavy-lift rocket to fly Race to Come in the Indian Ocean Region: OPINIONS AND ANALYSIS A Role for the Quad? again around November in crucial test By John B. Sheldon China Announces Development of Multipurpose, Reusable Space Plane There is a geoeconomic space race developing NEW PUBLICATIONS between China and other Great Powers in FCC approves SpaceX constellation, denies developing a space economy that supports, waiver for easier deployment deadline and corresponds to, their infrastructure and FCC Accuses Stealthy Startup of Launching governance programmes on the Earth’s Rogue Satellites surface. Nowhere is this competition more Japanese government launches $940 million evident than in the Indian Ocean Region. fund for space start-ups Japanese Approaches to Assume Sustainability in Space OPINIONS AND ANALYSES By Kazuto Suzuki NEW PUBLICATIONS For implementing the concept of mission assurance, Japanese government set up five EDITORIAL BOARD principles: cost effectiveness; future prediction; combination of measures; cross- Editor: Dr. Rajeswari Pillai Rajagopalan domain cooperation; and international cooperation. Associate Editor: Vidya Sagar Reddy 1 A Swarm of Legal Issues Launched by by the FCC, having a second license First Rogue Satellites application revoked. Even as regulators in the United States Ashok G.V. investigate the lapses that allowed for an The Background unauthorised space object to find its way to space, the Space Bees have revealed the On 9 March, it was first reported that four cracks in regulations, both domestic and small satellites were operating in space international, thus provoking nations to reflect without a license. Since then, reports have on the limitations governing international legal been steadily emerging regarding various systems applicable to the launch of space aspects of the events that led up to the objects and explore solutions to prevent the launching of the SpaceBees. However, these repeat of such episodes. reports emerging in public domain are yet to clarify the critical question of how such an It is important to recognise the need for policy unauthorised space object cleared U.S. border and regulations to identify points of area and made it all the way to orbit. responsibility, to address the critical question of liability in the event of rogue satellites What is known is that, in the month of April causing damages either on earth or in space. In 2017, Swarm Technologies of California filed this article, we explore the concerns from the for a license to launch and operate their perspectives of both the United States of experimental SpaceBee satellites with the US America, the nation who has jurisdiction over Federal Communications Commission (FCC). Swarm Technologies and India, the state that These tiny satellites measured 10cm in width launched the space bees and propose solutions and length, but only a quarter of that size in that could likely prevent such unauthorised thickness. The FCC raised concerns about this space activities in the future. matter, worried that the SpaceBees were too small to track and, ultimately, decided not to From the US perspective grant Swarm Tech a license in December As it has emerged, there are primarily three 2017. Curiously, the SpaceBees were actors in the United States of America scheduled to fly in September 2017. Swarm involved in the Spacebees incident, viz., Tech contracted with Spaceflight Inc, a launch Swarm Technologies, the owners of the broker, to organise a flight with Antrix Spacebees, Spaceflight Inc., the launch broker onboard a PSLV rocket. and finally the U.S. regulatory authorities, Unfortunately, a failed launch in August 2017 starting with the FCC. pushed the launch of the SpaceBees back to At the very least, Swarm Technologies January 2018. By this time, Swarm Tech required a clearance from the FCC for being would have been made aware of the FCC’s able to operate the Spacebees. In addition to refusal. Nevertheless, shortly after the launch the FCC clearances, the Spacebees would also of the PSLV, amateur space trackers detected have to secure an export license as a dual-use and were able to track four mysterious objects item from the Commerce Department in terms (contrary to the FCC’s concerns, private actors of the Export Administration regulations. have been able to track the SpaceBees). By Considering that the clearances issued by the March 8, Swarm Tech had been reprimanded 2 FCC and the Commerce departments are the no knowledge of the illegality of the subject matter of independent processes, the transactions they were facilitating. likelihood of a space object receiving export clearances even before FCC clearances cannot In contrast, the judgement of the European be denied and the Spacebees may have thus Union Court of Justice in the case of L’Oréal been the beneficiaries of the independence and v. eBay, better addressed the nuances of autonomy with which the FCC and the brokering services. In its landmark judgement, Commerce Department work. In the wake of the court classified services of brokers like this incident, it would be useful to reflect on eBay into two categories, viz., a neutral optimizing inter agency cooperation even function i.e., providing technical and within the realm of domestic regulations. automatic processing of data and an active function i.e., those functions which gives The Spacebees incident also brings to focus, brokers active knowledge and control over the roles and responsibilities of launch service data. Ultimately, it concluded that while brokers like Spaceflight Inc. A typical launch brokers like eBay could claim exemption from service brokering contract would a) Require liability for illegal transactions conducted the payload owners to represent and declare through them, if they merely assumed a that they have secured requisite regulatory neutral function; wherever they played an clearances and that their payload launch would active function, they were liable for allowing not violate any laws, domestic and illegal transactions through them. international and b) Indemnify launch service brokers against any claims or actions arising On a perusal of the above judgements from the out of the payload owner’s aforesaid U.S.A. and the European Union, launch declarations being found false. The question brokers who play an active role in facilitating however, remains whether, launch service the launch of the satellite of satellite operators, brokers must be expected and called upon to may not be able to claim immunity from do more than just act on self declarations from liability if the launch of the satellite is payload owners? ultimately found without the authority of law. Though, no doubt, the context of a launch While no precedents exist to answer this broker is very different from that of a question, an analogous case that could throw ecommerce provider, because the stakes are some light on this question is that of Tiffany v. higher in the launch service market, the eBay , where Tiffay brought a claim against responsibility that law might ascribe on the eBay, an online marketplace brokering sale broker could either reflect the position and purchase of consumer goods, for failing to expressed by the European Union Court of prevent counterfeit goods from being through Justice or be much more stringent. its website to purchasers. eBay successfully argued that it does not have the responsibility Looking at the flight of the SpaceBees from of taking positive action to prevent counterfeit the US perspective then, one can see at least goods from being sold online and instead its three checkpoints (operational authorisation, responsibility is limited to taking down export authorisation, commercial facilitation) products for sale, if it is notified that they are where the SpaceBees should have raised counterfeit goods. To put it in simpler terms, alarms. The main reason that the US would brokers were absolved of liability if they had want to detect such an unauthorised launch by one of its nationals, even aboard a foreign 3 rocket, is that the US may still be responsible Antrix’s position is not unreasonable and for the activities of its nationals in space, even therefore understandable. if it never granted the authorisation. However, in the recently released notice of The Indian Perspective proposed rule making by the Federal Communications Commission, a specific It is a testament to the lack of detail and clarity reference is made to ITU notification in existing international regulations, when the procedures for small satellites providing point of responsibility for an unauthorised SATCOM services, which may make India’s launch cannot be precisely identified. While position a little vulnerable. After all small the U.S. has much to reflect upon and change satellites are not exempt from ITU notification from its perspectives, questions are being procedures.