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The Commercialization & Exploitation of Outer Space Legal and Ethical Questions Under International and National Laws
During the past twelve months the FCC has been making a series of decisions, at an accelerating pace, that may alter forever the Heavens as humans have come to experience them since well before the dawn of recorded history. These decisions include:
Licenses to launch hundreds of rockets, each containing dozens of satellites to be placed into low- and very-low earth orbit(s);
Expedited consideration and approvals of over 80,000 non-geostationary satellites.
Blanket licenses for millions of earth stations;
Modifications in satellite elevations from low- to very-low earth orbit(s).
Lawyers, scientists and public interest advocates around the world are voicing concerns that the FCC’s satellite licensing program presents a national and international security risk from multiple perspectives:
Hostile acts of sabotage (military security)
Vulnerability to malware and hacking (cybersecurity) in light of three major infrastructure attacks since January 2021
Collisions and debris (accidents)
Interference with weather prediction and insect/bee propagation (food security)
Damage to the ionosphere and unassessed effects on climate, rainforests, and biodiversity (environmental security)
Liability, indemnification, absence of insurance for many significant risks (Public Pays Principle)
Failure to address viable safe, more secure, economically robust alternatives (economic security), i.e A Balanced Solution. See Figures 1 and 2 at the end of this document.
The Controversy:
The satellite companies and the FCC itself downplay these concerns. The FCC is taking the position that the agency has no legal obligation to assess any of these risks prior to making important licensing decisions. Moreover, the FCC asserts it is not obligated to consult with at least fifteen other federal agencies that have jurisdiction and critical missions related to the satellite program (for example, the State Department, Department of Defense, Department of Agriculture, the National Oceanic and Atmospheric Administration, the Commerce Department, NASA). The satellite companies have not proffered proof of insurance covering the above risks, nor contracted to indemnify the U.S. or other nations injured by their actions. The FCC declines to promulgate rules to require indemnification or insurance. The FCC does not appear to have discussed any of the above risks with other governments, while the agency by its actions is abrogating obligations under international treaties that have been signed and ratified by the United States. No critical assessment of the risks and costs of the satellite program and the benefits of alternatives appears to have been taken. The FCC’s current laissez faire policy has been challenged in a Petition for Emergency/Expedited Rulemaking filed on March 11, 2021.
Purposes of the Program
To alert practicing attorneys to the unusually broad range of important legal issues presented by the FCC’s satellite licensing program, involving international law, Space law, national security law, export controls, environmental law (federal, state, and international), administrative law, human rights law, insurance law, privacy law, intellectual property law, public interest law, and comparative law of many other countries.
To enlist the creative contributions of attorneys by demonstrating how what is being permitted and encouraged in Space will irrevocably affect their individual practices on behalf of clients here on Earth.
2 Participatory MCLE Credits
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