From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
Forum on Air & Space Law Annual Conference 2016
By Karen D. Dacres, General Counsel and Director of Government Relations
PlanetIQ LLC (16 September, 2016)
On 14 April, 2016, Representative Jim Bridenstine (R-Oklahoma)1 formally
introduced and sponsored a comprehensive legislative bill in the U.S House of
Representatives, entitled, The American Space Renaissance Act2 (ASRA, the Act or H.R.
4945). In an atmosphere where access to space is no longer assured, and in which the
space environment is increasingly becoming more “congested, contested, and
competitive,”3 this paper examines the Act’s impact on the future of space, as the United
States grapples with not only the diverse challenges presented in the space environment,
but also how it will leverage and take advantage of opportunities in that environment.
At the outset, one may question the significance of H.R. 4945, as well as what is
distinguishable about this legislation. First, H.R. 4945, in large part, not only overhauls
the existing U.S. space law and policy paradigm in toto,4 but also presents a sweeping
continuum, in which our Nation’s approach to its future in space is revectored to achieve
ultimate preeminence5 in the space environment. Secondly, the proposed Act sets forth a
detailed and exhaustive primer of U.S. space activities, with a laser focus on the diverse
Representative James Frederick “Jim” Bridenstine is a United States Congressman who was elected in
2012 to the U.S. House of Representatives, to represent the State of Oklahoma’s First Congressional
District. He was re-elected in 2016, and serves on the House Armed Services Committee and the Science,
Space and Technology Committee, which authorizes both NASA and NOAA activities. In that capacity,
Representative Bridenstine serves as Chairman of the House Environment Subcommittee. See generally,
http://bridenstine.house.gov.
2
See, H.R. 4945 (114th Congress, 2nd Session, 2015-2016), 14 April, 2016.
3
See, Space Foundation, Schulte: Space is Congested, Contested, Competitive - Deputy Assistant SecDef
for Space Policy Lays Out Objectives, Challenges,” Space Watch, Vol. 10, Issue No. 6, June 2011.
Speaking at the 27th National Space Symposium in April, 2011, Ambassador Gregory L. Schulte, Deputy
Assistant Secretary of Defense for Space Policy for the U.S. Department of Defense, spoke about the "three
Cs" of space - Congested, Contested, Competitive. In the context of how space is supporting U.S. troops in
the Middle East, Ambassador Schulte said that space assets are critical to national security, but that the
three Cs also create challenges: (1) Congested: Space debris caused significant alarms at the International
Space Station; (2) Contested: Libya and Iran have resumed jamming of U.S. communications satellites;
and (3) Competitive: the United States' satellite manufacturing market share is decreasing, due to foreign
competition, at a concerning rate. In this environment, the U.S. Department of Defense has a new strategy,
cosigned by the Secretary of Defense and the Director of National Intelligence, aimed at strengthening
safety, stability and security, as well as energizing the industrial base.
4
See, e.g., Foust, Jeff and Gruss, Mike. Bridenstine Introduces American Space Renaissance Act, Space
News, 13 April, 2016, in which Rep. Bridenstine states that the proposed Act “is a comprehensive bill,
because ensuring that America is the preeminent spacefaring nation requires a holistic approach to [the]
entire American space enterprise.” See, also, Messier, Doug. Space Renaissance Act Calls for Major
Changes in Commercial Policy, Parabolic Arc, 03 May, 2016.
5
See, H.R. 4945 (114th Congress, 2nd Session, 2015-2016), p. 1, 14 April, 2016. The Act’s stated mission
is “to permanently secure the United States of America as the preeminent spacefaring nation.” Notably,
the Act’s author, Representative Jim Bridenstine, chose the word “preeminence,” as opposed to
“dominance” to underscore H.R. 4945’s underlying premise that space superiority must be comprehensive
and holistic in every facet of the space environment: national security; civil; and commercial.
1
From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
Forum on Air & Space Law Annual Conference 2016
By Karen D. Dacres, General Counsel and Director of Government Relations
PlanetIQ LLC (16 September, 2016)
and significant national security6, civil7 and commercial8 issues confronting the United
States in space – with the ultimate goal of ensuring U.S. preeminence in space.9 Thus,
from a legislative perspective, ASRA is unusual not only in its breadth and detail, but
also in its unequivocal and aspirational treatment of U.S. space activity.10 Thirdly, the
proposed Act is further distinguishable from any predecessor space legislation in the
measured manner in which the legislative bill explicitly addresses those aspirations.11 It is
important to note, however, that the Act’s author, Representative Bridenstine,
acknowledges that such sweeping changes will present significant challenges, but
contends that the resultant and significant advances in technology, in conjunction with
increased efficiencies, will ensure that the United States will restore and maintain its
place, as the global leader in space in the immediate future and for future generations.
6
See, H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title I, §§ 101-109, pp. 2-33, 14 April, 2016.
Title I of the Act recognizes the challenges of modern warfare, and in response to those challenges, denotes
the securing of U.S. military dominance through the leveraging and protection of Government and
commercial space capabilities in air, land and sea.
7
See, H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title II, §§ 201-206, pp. 33- 67, 14 April, 2016.
Title II of the Act recognizes the extraordinary achievements of the National Aeronautics and Space
Administration Act, as our Nation’s premier space agency, and the often shifting policy dichotomies
imposed on the agency simultaneously by the U.S. Congress and the Executive Branch. In this context,
Title II explicitly outlines a path for agency stability in leadership and goals -- centering on the immediacy
of not only bolstering the Nation’s mission to Mars, but also ensuring the development of an executable
implementation plan to achieve landing humans on Mars. Title II also proposes the reorganization of
NASA through amendment of existing statutory authorizations, a human mission to Mars, the achievement
of a human presence in low Earth orbit (LEO), space debris remediation, and insuring payloads under the
commercial resupply program. Finally, Title II aims to strengthen accountability and to minimize risk,
while concurrently strengthening NASA’s commercialization goals.
8
See, H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, §§ 301-311, pp.67-110, 14 April,
2016. Title III of the Act recognizes the significant capital requirements, technical and regulatory risks,
and foreign competition that often stymie the commercial space industry’s ability to innovate and compete
in a global environment – particularly, start-up space ventures. See, generally, The Tauri Group. Start-up
Space: Rising Investment in Commercial Space Ventures, January 2016. Because of these considerations,
Title III largely focuses on the bolstering the commercial space sector by amending the current body of
statutory and regulatory law, providing funding for relevant licensing agencies, providing transparency of
the application process for licensees, and incentivizing commercial space operators through amendment to
the Internal Revenue Code, loan guarantees, and prizes. See, e.g., Listner, Michael. An Overview of the
American Space Renaissance Act (Part 3), Space Review, 9 May, 2016.
9
Id.at FN 5.
10
Id.at FN 5. To effectively achieve the Act’s goal of “permanently secur[ing] the United States of
America as the preeminent spacefaring nation,” ASRA sets forth transformative constructs and processes
to be implemented within the U.S. Government, while concurrently promoting commercial interests to spur
technological innovation.
11
In unveiling H.R. 4945 to attendees of the 32nd National Space Symposium in Colorado Springs, CO on
13 April, 2016, Representative Bridenstine noted that “. . . it was never my intent to pass the bill intact.”
Two months later, on 08 June, 2016, at the American Bar Association’s 2016 Space Symposium,
Congressman Bridenstine explained in his keynote speech why passage of the bill in its entirety was
unlikely: “There are too many things in there that are too bold. We introduced the bill for the purpose of
creating a conversation and finding out where we can build consensus.” See, generally, Foust, Jeff.
“Bridenstine Pleased by Progress on Space Bill,” Space News, June 9, 2016.
From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
Forum on Air & Space Law Annual Conference 2016
By Karen D. Dacres, General Counsel and Director of Government Relations
PlanetIQ LLC (16 September, 2016)
Thus, throughout the voluminous Act, there are themes of efficiency, which are reiterated
throughout the legislative language – mitigation (both in technical risk and cost);
resiliency and augmentation of space assets; and coordination and consistency in
processes. Consequently, while the extent of ASRA’s impact on the future of space in
the long-term remains to be determined, the American Space Renaissance Act’s influence
on existing U.S. space programs and activities is already remarkable. 12
Largely divergent from existing space statutory authorities,13 and going well
beyond the goals of current national space policy,14 the American Space Renaissance Act
rethinks the U.S.’ approach to space, and charts for the United States Government – both
the national security (Department of Defense and the Intelligence Community) and Civil
Id. at FN 11. Notwithstanding Representative Bridenstine’ s realistic expectations regarding the Act’s
overall legislative success, to date, ten (10) substantive provisions of the proposed Act were incorporated in
the House’s version of the National Defense Authorization Act, H.R. 4909, FY 2017 National Defense
Authorization Act (NDAA), which passed the full House, on 18 May, 2016. Those provisions include the
creation of a pilot program by the Air Force to purchase commercial weather data and support for a
separate program to make use of advanced commercial satellite communications. Separately, House
versions of a Commerce, Justice and Science Appropriations bill and a Transportation, Housing and Urban
Development Appropriations bill, approved by the House Appropriations Committee, on 24 May, 2016,
includes several provisions from the civil and commercial space portions of the Act. The report language
included in the T-HUD appropriations bill, requires a report on NASA lunar programs, funding for
commercial satellite weather data and full funding for the FAA’s Office of Commercial Space
Transportation. The Congressman has noted that “he would continue to work to find opportunities to
incorporate other sections of the Act into legislation.”
13
Since the mid-1940s, a seemingly disparate cadre of U.S. statutory authority has been enacted regarding
U.S. national and commercial space programs. As examples, consider the following statutory authorities:
The National Aeronautics and Space Act of 1958, Pub. L. 85-568, Title I, § 101, 29 July 1958; The
National Space Grant College and Fellowship Act, Pub. L. 100-147, Title II, § 201, 30 October 1987; The
Land Remote Sensing Policy Act of 1992, Pub. L. 102-555, 15 U.S.C. § 5601 et seq., as amended by the
Commercial Space Act of 1998, Pub. L. 105-303 (1998); and the National Aeronautics and Space
Administration Authorization Act of 2008, Pub L. 110-422, 15 October 2008.
12
More recently, consider the enactment of The National and Commercial Space Programs Act of 2010, 51
U.S.C. §§ 10101 et seq. (Public Law 111-314), 18 December, 2010, which served to consolidate some, but
not all, existing statutory authority, focused on space activities. For example, 51 U.S.C. §§ 60101 et seq.
formerly was codified as the Land Remote Sensing Policy Act of 1992, Pub. L. 102-555, 15 U.S.C. § 5601
et seq., as amended by the Commercial Space Act of 1998, Pub. L. 105-303 (1998). Prior to the enactment
of the National and Commercial Space Programs Act of 2010, no single, consolidated statute existed in the
United States Code addressing U.S. space programs.
14
But see, the policy evolution of ASRA’s legislative aspirations for the U.S. in space, as noted in the
National Space Policy, as set forth by the U.S. Executive Branch: (1) White House, Presidential Decision
Directive (PDD) 23, Foreign Access to Remote Sensing Space Capabilities (March 1994); (2) White
House, National Security Presidential Directive (NSPD) 27, U.S Commercial Remote Sensing Space Policy
(25 April, 2003); and (3) White House, National Space Policy of the United States (28 June, 2010). In
particular, the 2010 National Space Policy states that a robust and competitive commercial space sector is
vital to continued progress in space. Consistent with this policy objective, the U.S. Government is
“…committed to encouraging and facilitating the growth of a U.S. commercial space sector…that is
globally competitive, and advances U.S. leadership . . .”
From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
Forum on Air & Space Law Annual Conference 2016
By Karen D. Dacres, General Counsel and Director of Government Relations
PlanetIQ LLC (16 September, 2016)
departments and agencies – as well as the commercial space industry15 -- a decisive path
forward in space, for U.S. programs, activities and ongoing leadership. Finally, H.R.
4945 is further distinguishable from its statutory authority predecessors, in the manner in
which the Act anticipates the advent of novel space technologies and expressly addresses
how the USG will leverage and provide governance of current and future missions.16
To gain better insight into ASRA’s impact on the future of space, consider the
Act’s potential impact in one space sector. In this context, this paper will examine the
American Space Renaissance Act’s impact upon the commercial remote sensing satellite
industry. In 1992, the genesis of the U.S. commercial remote sensing satellite industry
was established by U.S. law.17 From that historical vantage point, the statutory and
resultant regulatory18 paradigm consisted of the U.S. Department of Commerce’s
National Oceanic and Atmospheric Administration (NOAA) regulating19 a Licensee’s20
constellation of one remote sensing satellite -- with the hope that in three or four years
from launch, another satellite build could begin to be eventually launched, before the end
of the operational lifetime of the initial licensed system. Notably, since its inception, the
U.S. commercial remote sensing satellite industry has been further bolstered by
supportive national space policies21, a growing global dependence upon a diverse cadre
15
See, Smith, Marcia S. Bridenstine Lays Out Multipronged Legislative Agenda for Commercial Space,
Space Policy Online.com, 28 February, 2016.
16
In contrast, see H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, § 309 (“American Space
Competitiveness”), pp. 93-107, 14 April, 2016. More specifically, see, Title III, § 309(a) (“Enhanced
Payload Review and Determination”).
17
See, 51 U.S.C. §§ 60101 et seq., which was formerly codified as the Land Remote Sensing Policy Act of
1992 (herein, “LRSPA”), Pub. L. 102-555, 15 U.S.C. § 5601 et seq., as amended by the Commercial Space
Act of 1998, Pub. L. 105-303 (1998). The LRSPA superseded the Land Remote-Sensing
Commercialization Act of 1984, Pub. L. 98-365, 15 U.S.C. § 4201 et seq., which had as its purpose the
establishment of “a system to promote the use of land remote-sensing satellite data.”
18
See, generally, the regulations promulgated by the U.S. Department of Commerce’s National Oceanic
and Atmospheric Administration (herein, “NOAA”), 15 C.F.R. Part 960, Final Rule, Licensing of Private
Land Remote-Sensing Space Systems, Federal Register, Vol. 71, No. 79, 25 April, 2006, pp. 24474 - 24491.
Note that the 2006 regulations contained minor, largely non-substantive revisions to the regulations
promulgated by NOAA in 2000. See, 15 C.F.R. Part 960, Interim Final Rule, Licensing of Private Land
Remote-Sensing Space Systems, Federal Register, Vol. 65, No. 147, 31 July, 2000, pp. 46822 - 46837.
19
Under the current statutory construct – specifically, 51 U.S.C. § 60121(a) (“General Licensing
Authority”) and 51 U.S.C. § 60123(a) (“Administrative Authority of Secretary”) grants authority to the
Secretary of Commerce to “grant, condition or transfer [remote sensing operating] licenses . . . “
20
See, 15 C.F.R. § 960.3 (“Licensee”), which is defined as “a person who holds a NOAA license to
operate a remote sensing space system.”
21
See, generally: White House, Presidential Decision Directive (PDD) 23, Foreign Access to Remote
Sensing Space Capabilities (March 1994); White House, National Security Presidential Directive (NSPD)
27, U.S Commercial Remote Sensing Space Policy (25 April, 2003); and White House, National Space
Policy of the United States (28 June, 2010). The 2010 National Space Policy states that a robust and
competitive commercial space sector is vital to continued progress in space. Consistent with this policy
objective, the U.S. Government is “…committed to encouraging and facilitating the growth of a U.S.
commercial space sector…that is globally competitive, and advances U.S. leadership…” This includes
developing “…governmental space systems only when it is in the national interest and there is no suitable,
From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
Forum on Air & Space Law Annual Conference 2016
By Karen D. Dacres, General Counsel and Director of Government Relations
PlanetIQ LLC (16 September, 2016)
of user-focused, geospatial information, and a confluence of technologically-evolved,
affordable and agile technologies. Fast forward to today’s reality, in which U.S.
commercial remote sensing satellites are launched in constellations, which may be
comprised of 20 to 120 small and lightweight satellites, ostensibly, and which are capable
of collecting 0.25 meter resolution imagery22. This new reality harkens an exciting time
for a burgeoning global industry – an industry which has far outpaced initial growth
estimates of the addressable remote sensing market.
Over at least the past 40 years, the U.S. Government has served as an advocate for
the commercial remote sensing space industry – codifying the U.S. Government’s role,
vision and objectives in space explicitly in U.S. law, regulation and national policy.23
However, in doing so, the U.S. Government has noted repeatedly that Government
funding could not serve as the basis for long-term success of this industry.24 Until as
recently as 2012, the reality reflected the converse.25 However, as is often the case when
technology is coupled with and challenged by increasing market demand and growing
foreign competition, it appears that substantial decreases in Government funding and the
advent of disruptive technologies such as small satellites – also known as SmallSats26 –
cost- effective U.S. commercial or, as appropriate, foreign commercial service or system that is or will be
available.”
22
See, Ferster, Warren. U.S. Government Eases Restrictions on DigitalGlobe, Space News, 11 June, 2014.
23
Id. at FN 17, FN 18 and FN 21.
24
See, generally, Weber, Robert A. and O’Connell, Kevin M. Alternative Futures: United States
Commercial Remote Sensing Satellite Imagery in 2020, November 2011.
25
As recently as 2010, the two U.S. companies operating these commercial remote sensing satellites -GeoEye, Inc. and DigitalGlobe, Inc.-- were largely dependent on U.S. Government funding, such as the 10year, $7.3 billion two- contract award announced on 6 August 2010 by the National Geospatial-Intelligence
Agency (NGA). See also, NGA News Release, NGA Awards EnhancedView Commercial Imagery
Contract, 6 August 2010.
26
SmallSats offer agility, diversity of application, resiliency, ubiquity -- and perhaps just as importantly -affordability. These attributes open the aperture for making satellite launch and operation more attractive
and accessible, allowing “NewSpace” entrants into the market, where previously, there had been none.
NewSpace is a global industry of private companies and entrepreneurs who primarily target commercial
customers, are backed by risk capital seeking a return, and seek to profit from innovative products or
services developed in or for space. Presently, NewSpace is composed of nearly 1,000 companies globally.
What was once dominated by a few players is today an incredibly diverse ecosystem in terms of company
sizes, business models and geographic locations. See, Quinn, Kristin. The Maturation of Small Satellites.
2014 Issue 1, Trajectory Magazine. http://trajectorymagazine.com/business-and-technology/item/1677-thematuration-of-smallsats.html.
In the remote sensing satellite industry, there are two such (relatively) new entrants, disrupting the remote
sensing landscape – SkyBox Imaging (as of 2014, Google SkyBox), and Planet Labs. Following the
successful November, 2014 launch of SkyBox Imaging’s SkySat-1—a 100-kilogram SmallSat—and the
company’s subsequent production of sub-meter imagery and high-definition video, this launch has proven
that a small, lightweight, and inexpensive satellite can not only be impactful, but also that commercial
remote sensing satellite imagery may just be the killer application – also known as “killer app” -- for
SmallSats. SkyBox plans a total constellation of 24 satellites.
From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
Forum on Air & Space Law Annual Conference 2016
By Karen D. Dacres, General Counsel and Director of Government Relations
PlanetIQ LLC (16 September, 2016)
have proven to be more significantly influential, in the long term, than incremental and
conflicting changes in existing U.S. Government policy, law and regulation, to the
commercial space industry.
Notably, beyond consolidation of existing statutory authority in 201027 , there
have not been substantive modifications to existing Department of Commerce statutory
and regulatory licensing and compliance authorities and framework, for over a decade.28
This reality exists, despite considerable changes in the remote sensing global market
space, novel business models that were not contemplated or anticipated, at the time that
these statutory and regulatory authorities were promulgated, and in the face of everincreasing foreign competition. In glaring contrast, H.R. 4945 rethinks the entire remote
sensing statutory and policy landscape29 – particularly, regarding the Department of
Commerce’s functional30 and regulatory31 responsibilities.
To provide a historical vantage point, in 18 December, 2010, the U.S. Congress
enacted the National and Commercial Space Programs Act of 201032 (herein, “the Act”).
The Act’s purpose was to codify certain existing laws related to national and commercial
space programs of the United States, under a unified law title, as well as to remove any
ambiguities and inconsistencies, that existed in the predecessor existing laws. Subtitle VI
of the Act, entitled, Earth Observations, and more specifically, Subsection 601 (“Land
Remote Sensing Policy,”) focuses on land remote sensing, and the licensing of operations
of private remote sensing space systems. Under current U.S. statutory33 and
Similarly, with other U.S. market entrants, such as Planet Labs—with its flock of 28 “Dove” CubeSats
launching from the International Space Station in Q1 2014—the SmallSat explosion appears to have just
begun. The company has launched 113 of its Dove imaging CubeSats so far; it will have 150 Doves in orbit
by the end of 2016. Together the fleet captures a complete image of the Earth every day, and the pictures
are used by everyone from farming conglomerates to disaster responders. See, Betancourt, Mark. The Rise
of the CubeSats, Air & Space Magazine, p. 99, 20 January, 2016.
27
Id. at FN 17.
28
Id. at FN 27. In contrast, however, H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, §
307(f), p. 91, 14 April, 2016, mandates that the Department of Commerce promulgate its private remote
sensing licensing regulations, contained in 15 CFR Part 960, 90 days after ASRA’s enactment.
29
See, e.g., H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title I, § 108 (“Remote Sensing”), which
explicitly acknowledges the significant role of the National Geospatial-Intelligence Agency, as the lead
U.S. agency for the acquisition and dissemination of commercial remote sensing satellite data, imagery and
services. See, e.g., White House, National Security Presidential Directive (NSPD) 27, U.S Commercial
Remote Sensing Space Policy (25 April, 2003).
30
See, e.g., H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, § 306 (“Department of
Commerce Space-Related Activities”), 14 April, 2016.
31
See, e.g., H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, § 307 (“Commercial Remote
Sensing Licensing Reform”), 14 April, 2016.
32
Id. at FN 27.
33
Id. at FN 27.
From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
Forum on Air & Space Law Annual Conference 2016
By Karen D. Dacres, General Counsel and Director of Government Relations
PlanetIQ LLC (16 September, 2016)
regulatory34 authorities regulating the commercial remote sensing s a t e l l i t e
industry, the U.S. legal regime has sought to facilitate the development of the U.S.
commercial remote sensing space industry, while at the same time, promoting the
collection and widespread availability of Earth remote-sensing data and preserving
essential U.S. national security concerns and international obligations. In furtherance of
this policy goal, the United States’ underlying premise is that the long-term national
security concerns and foreign policy interests of the United States are best served by
helping the U.S. space industry lead this emerging market. Other U.S. goals include:
(1) the advancement of critical aerospace and information technologies to support the
U.S. industrial base; and (2) the promotion of job opportunities, economic growth,
sustainable development, and improved living standards. While these goals have been
admirable, in practice, the U.S. Government has long struggled with balancing national
security concerns, foreign policy interests and international obligations, with viable
advocacy, actionable space policy and the promotion of the Nation’s commercial remote
sensing space industry.35 While current national policy affirms U.S. intent to lead in this
area, that goal of U.S. leadership in space is often undermined by a failure to fully
implement policy guidance, due to agency mindsets and actions, which are often
inconsistent with and in direct contravention of that policy guidance.36 These factors
“drag heavily on U.S. interests” in a dynamically changing global satellite remote sensing
market and an expanding global geospatial ecosystem that includes terrestrial, airborne
and space components. 37
In this conflicting environment of U.S. space policy and its resultant practical
application, Subchapter III38 of the A c t provides the comprehensive legal framework
for U.S. regulation of the remote sensing space (satellite) industry. Under
Subchapters III39 and V40 of the Act, the Secretary of Commerce ("the Secretary")
See, generally, the regulations promulgated by the U.S. Department of Commerce’s National Oceanic
and Atmospheric Administration (herein, “NOAA”), 15 C.F.R. Part 960, Final Rule, Licensing of Private
Land Remote-Sensing Space Systems, Federal Register, Vol. 71, No. 79, 25 April, 2006, pp. 24474 - 24491.
Note that the 2006 regulations contained minor, largely non-substantive revisions to the regulations
promulgated by NOAA in 2000. See, 15 C.F.R. Part 960, Interim Final Rule, Licensing of Private Land
Remote-Sensing Space Systems, Federal Register, Vol. 65, No. 147, 31 July, 2000, pp. 46822 - 46837.
35
Id. at FN 17.
36
See, Advisory Committee on Commercial Remote Sensing (ACCRES), Memorandum to the Secretary
of Commerce, Administrator of NOAA, and the Assistant Administrator for Satellites and Information of
NOAA: Perspectives and Outlook on U.S. Commercial Remote Sensing,” p. 2, Para. 1, February 2015.
37
Id. at FN 36.
38
See, generally, 51 U.S.C. §§ 60121-60125. In particular, see, 51 U.S.C. § 60121 (“General Licensing
Authority”) and 51 U.S.C. § 60123 (“Administrative Authority of the Secretary”).
39
Id. at FN 38.
40
See, generally, 51 U.S.C. §§ 60141-60148. In particular, see, 51 U.S.C. § 60147 (“Consultation”) and 51
U.S.C. § 60148 (“Enforcement”).
34
From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
Forum on Air & Space Law Annual Conference 2016
By Karen D. Dacres, General Counsel and Director of Government Relations
PlanetIQ LLC (16 September, 2016)
is authorized to issue licenses to private sector parties41 for t h e operation of
private remote sensing space systems ("the System") which produce remote
sensing satellite imagery,42 as well as to make investigations and inquiries concerning
any matter relating to the enforcement43 of a N O A A operating license ("the
License") issued thereon. In furtherance of that authority, the Secretary has a
continuing obligation to attest, in writing, that the Licensee will comply with all of
the requirements of the Act and regulations thereunder, including specifically, any
national security concerns and international obligations of the United States.44 This
responsibility has been delegated from the Secretary to NOAA’s Administrator and
was re-delegated to NOAA's Assistant Administrator for Satellite and Information
Services.45
NOAA administers and enforces the agency's legal regime for the licensing of
Systems under the Act and the U.S. Commercial Remote Sensing Space Policy
(“CRSSP”), 25 April, 2003, including monitoring and compliance of these Systems,
through the promulgation of regulations.46 The CRSSP establishes the U.S. policy
objectives of. advancing and protecting U.S. national security and foreign policy interests,
by maintaining the nation’s leadership in remote sensing space activities and by sustaining
41
Any "person subject to the jurisdiction or control of the United States" who wishes to operate a private
remote-sensing space system, "either directly or through any subsidiary or affiliate," must apply for and be
granted a NOAA operating license. Those "persons" include, but are not limited to: an individual who is a
citizen of the United States; a corporation, partnership, association or other entity organized or existing
under the laws of the United States or any state, territory, or possession thereof; or any other private space
system operator having substantial connections with the United States or deriving substantial benefits from
U.S. law that support its international remote-sensing operations. See, 51 U.S.C. § 60122(a) and 15
C.F.R. § 960.2(a).
42
Remote sensing satellite imagery is defined as unenhanced or enhanced data generated by any remote
sensing space system, including those licensed under the National and Commercial Space Programs Act,
51 U.S.C. §§ 60121 et seq. See also, 15 C.F.R. § 960.3.
A remote sensing space system is defined as any device, instrument, or combination thereof, the spaceborne platform upon which it is carried, and any related facilities capable of actively or passively sensing
the Earth's surface, including bodies of water, from space by making use of the properties of
electromagnetic waves emitted, reflected, or diffracted by the sense of objects. See, 15 C.F.R. § 960.3.
In a layperson's terms, remote sensing satellite imagery provides images or photographs of the earth's
surface taken from space, and a remote sensing space system serves as the ubiquitous "camera in the sky."
See, 51 U.S.C. § 60123(a)(1) and (a)(2) (“Administrative Authority”), in which the Secretary of
Commerce may “grant, condition and transfer licenses,” as well as “seek an order of injunction or similar
judicial determination . . .” and 51 U.S.C. § 60148 (“Enforcement”).
44
See, 51 U.S.C. § 60121(b)(1) (“Compliance with Law, Regulations, International Obligations, and
National Security”).
45
The Assistant Administrator for Satellite and Information Services serves as the Director of NOAA’s
National Environmental Satellite, Data and Information Service (NESDIS). Through the promulgation of
NOAA Administrative Orders, the regulatory licensing and monitoring and compliance functional
responsibilities are further delegated to the Director of NESDIS’ Commercial Regulatory Affairs’ Office.
46
See, 51 U.S.C. § 60124 (“Regulatory Authority of the Secretary”). See, generally, 15 C.F.R. Part 960.
43
From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
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and enhancing the U.S. remote sensing industry, as well as by setting forth the U.S. policy
of "shutter control.”47
In furtherance of that responsibility, NOAA promulgates regulations revising the
agency's minimum requirements for the licensing, monitoring and compliance of
operators of private remote sensing space systems under Subchapter III48 of the
Act. The requirements of NOAA's regulations are reflected in the terms and
conditions of the License. First, the License applies only to the operations49 of a
System which produces data or satellite imagery of surface features of the Earth.
Furthermore, the License applies to operations by a U.S. entity or a non-U.S.
entity, on a case-by-case basis and subject to the jurisdiction and control, taking
into account such factors as: receiving a U.S. launch; operating a U.S. ground
station; and other factual circumstances which may require NOAA's exercise of
licensing jurisdiction on a prospective Licensee. However, the Secretary or his/her
delegate must consult with the Secretary of Defense on all matters under the Act
affecting national security, and only the Secretary of Defense has responsibility
for determining national security conditions.50 A similar provision under the Act
makes consultation with the Secretary of State mandatory, where matters arise
“Shutter Control” is the term that references the Secretary of Commerce’s authority to limit or otherwise
restrict data collection and/or distribution of a Licensee’s commercial remote sensing space system “during
periods when national security or international obligations and/or foreign policies may be compromised,"
as determined by the Secretary of Defense or the Secretary of State. Consistent with Appendix 2,15 C.F.R.
Part 960, “[c]onditions should be imposed for the smallest area and for the shortest period necessary to
protect the national security, international obligations, or foreign policy concerns at issue.
Alternatives to prohibitions on collection and/or distribution shall be considered such as delaying the
transmission or distribution of data, restricting the field of view of the system, encryption of the data if
available, or other means to control the use of the data.”
47
Thus, any said limitations imposed by the U.S. Government must be made consistent with the U.S.
Constitution – specifically, the First Amendment, as any legal challenges to such a governmental action
will be reviewed by a court of competent jurisdiction under the doctrine of strict scrutiny. Under the
doctrine of strict scrutiny, the Government’s limitation must have been made in furtherance of a
"compelling governmental interest," and must have been narrowly tailored to achieve that interest.
According to the U.S. Supreme Court, content-based speech restrictions are constitutional, as long as those
restrictions are "narrowly tailored to serve a compelling state interest" See, e.g., Austin v. Michigan
Chamber of Commerce, 494 U.S. 652, 655 (1990); Boos v. Barry, 485 U.S. 312, 334 (1988) (plurality); see
also Burson v. Freeman, 504 U.S. 191, 198 (1992) (plurality); Board of Airport Commisioners v. Jews for
Jesus, Inc., 482 U.S. 569, 573 (1987); and Cornelius v. NAACP Legal Defense and Education Fund, Inc.,
473 U.S. 788, 800 (1985).
48
Id. at FN 38.
49
See, 15 C.F.R. § 960.3. For the purposes of NOAA's regulations, to "operate" a remote sensing space
system means to “manage, run, authorize, control, or otherwise affect the functioning of a remote sensing
space system, directly or through an affiliate or subsidiary. This includes: (1) Commanding, controlling,
tasking, and navigation of the system; and (2) Data acquisition, storage, processing, and dissemination.”
50
See, 51 U.S.C. § 60147(a) (“Consultation with the Secretary of Defense”).
From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
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51
under the Act affecting international obligations.
Once granted by the
•
; Secretary, the
52
License is valid for a finite period. NOAA's License is non-transferable, and it is not
subject to foreign ownership thresholds.53 The License does not preclude requirements
for a NOAA Licensee to obtain related permits and licenses for exports of satellite
technology or equipment; for the use of radio frequencies, and for launch purposes.
Given this extensive statutory54 and regulatory55 construct, the U.S. Government
has often been confronted with regulatory challenges, as it balances commercial viability
of private Earth remote sensing space systems against the application of consistent,
legally-defensible regulatory practices that also serve to protect national security, foreign
policy interests and international obligations. And it is precisely in this context that
Sections 306 and 307 of the Act – and, in fact, Title III56 of the Act in its entirety --strive
to remedy what is perceived as substantial discrepancies in U.S. space regulatory
licensing processes and policy application. As posited in the Act, these discrepancies, if
left unresolved, will continue to unduly burden the U.S. commercial space industry.57
For example, Title III of the Act explicitly advances the premise that the United States
commercial space industry must be provided maximum regulatory certainty with minimal
regulatory burden.58 Further, Title III explicitly acknowledges that Government
regulators must be properly funded to provide licenses and reviews in a timely manner.59
See, 51 U.S.C. § 60147(b) (“Consultation with the Secretary of State”).
See, 15 C.F.R. § 960.9(a). “Finite period” is defined as the operational lifetime of the licensed system.
Thus, this regulatory provision grants regulatory flexibility to both the Licensee and the regulatory agency
in licensing a respective commercial remote sensing space system.
53
See, generally, 15 C.F.R. § 960.11. The issue of foreign ownership of a respective licensee is addressed
explicitly in two ways, but in summary, NOAA does not set a threshold, per se, for foreign ownership;
instead, NOAA performs a "totality of the circumstances" review and assessment of the proposed
transaction.
See specifically, 15 CFR § 960.8 ( "Notification of foreign agreements”), stating that a Licensee
must notify NOAA's Assistant Administrator for Satellite and Information Services of any significant
or substantial agreement that they intend to enter into with any foreign nation, entity or consortium.
Similarly, NOAA’s License reiterates certain provisions of the regulations, by placing an affirmative
duty on the Licensee to ensure that all information utilized by NOAA in making any licensing
determination is kept current and accurate, with stiff penalties being associated for non-compliance.
Thus, any changes in foreign investment or ownership must be reported to NOAA, prior to execution of
the transaction.
51
52
54
Id. at FN 27.
See, generally, the regulations promulgated by the U.S. Department of Commerce’s National Oceanic
and Atmospheric Administration (herein, “NOAA”) Licensing of Private Land Remote Sensing Space
Systems, 15 C.F.R. Part 960.
56
Id. at FN 8, generally.
57
Id.at FN 8.
58
See, H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, § 307(a)(1), 14 April, 2016.
59
See, e.g., H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, § 307(b), pp. 88-91, 14 April,
2016.
55
From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
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In further juxtaposition, Sections 306 and 307 of the Act are purposefully
divergent from the current remote sensing statutory60 and regulatory61 constructs. For
example, Sections 306 and 307 redefine the Department of Commerce’s functional and
regulatory remote sensing activities -- extolling the virtues of streamlining remote
sensing activities to promote both efficiency and transparency in the Department’s oftenconflicted and disparate promotion of the commercial remote sensing industry62 -- while
concurrently, serving as regulator63 of the commercial remote sensing space industry.
First, Section 306 of the Act focuses on “reorganizing portions of the Department of
Commerce to better support its space-related economic and regulatory activities,” 64 in
order to create stronger leadership in interagency functions related to space commerce
activities and to “bring benefits of space-based economic activities more directly to the
Secretary of the Department of Commerce.”65 Further, Section 306 requires the Secretary
of Commerce to provide a report to Congress within 180 days of the Act’s authorization
concerning the reorganization66 of certain Offices within the Department of Commerce
charged with regulatory management or oversight of the commercial remote sensing
space industry – such as the Office of Commercial Remote Sensing Regulatory Affairs,
the Office of Space Commerce, and the segments of the International Trade
Administration Bureau of Industry and Security -- that may have “unique” 67 spacerelated functions. Additionally, this Section of the Act further mandates that NOAA’s
Advisory Committee of Commercial Remote Sensing (ACCRES)68 may review and
60
Id. at FN 17.
Id. at FN 18. See, generally, the regulations promulgated by the U.S. Department of Commerce’s
National Oceanic and Atmospheric Administration (herein, “NOAA”) Licensing of Private Land Remote
Sensing Space Systems, 15 C.F.R. Part 960.
62
The Department of Commerce’s stated mission “to create the conditions for economic growth and
opportunity,” and “to serve as the voice of U.S. business within the President’s Cabinet.” See,
https://www.commerce.gov/page/about-commerce.
63
Id. at FN 32.
64
Id. at FN 30.
65
Id. at FN 30.
66
See, H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, § 307(a)(1) (“Department of
Commerce Space-Related Activities”), 14 April, 2016.
67
See, e.g., H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, § 306(a)(3) (“Department of
Commerce Space-Related Activities”), 14 April, 2016.
68
Established in 2002, the National Oceanic and Atmospheric Administration's (NOAA's) Advisory
Committee on Commercial Remote Sensing (ACCRES), provides information, advice, and
recommendations to the Under Secretary of Commerce for Oceans and Atmosphere on matters relating to
the U.S. satellite commercial remote sensing industry and NOAA's activities to carry out the
responsibilities of the U.S. Department of Commerce set forth in the National and Commercial Space
Programs Act (NCSPA or Act), 51 U.S.C. § 60101, et seq. ACCRES evaluates economic, technological,
and institutional developments relating to commercial remote sensing and submits to the Under Secretary
of Oceans and Atmosphere recommendations on promising new ideas and approaches for Federal policies
and programs. ACCRES serves as a forum for the discussion of issues involving the relationship between
remote sensing industry activities and Government policies, programs, and regulatory requirements.
For additional information, see, http://www.nesdis.noaa.gov/CRSRA/accresCharter.html.
61
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provide comment on the Secretary of Commerce’s report to Congress, prior to its
submission.69
Further expanding upon ASRA’s themes of efficiency, consistency and
transparency, Section 30770 of the Act mandates that the current licensing process for
commercial remote sensing be reformed substantially, in both form and process.71 In an
explicit acknowledgment of the risks and challenges currently faced by the commercial
remote sensing space industry, the substantive changes proposed are to grant applicants
for remote sensing licenses transparency to the perceptible issues being considered and
which federal agency or department is involved in a commercial remote sensing licensing
decision. Additionally, Section 307 of the Act recognizes the fact that the Department of
Commerce, acting on behalf of and in coordination of the U.S. Government, should not
limit commercial entities from providing remote sensing data products or capabilities that
are “already offered in the international marketplace.” Section 307 goes further, though,
by asserting that the Director of Commercial Remote Sensing Regulatory Affairs should
take into account mitigation procedures in place, under law or contract to protect national
security, before denying a license or placement of restrictions for remote sensing.
In an effort to promote efficiency, reliability and transparency in the Department
of Commerce’s commercial remote sensing regulatory licensing actions, Section 307 of
the Act proposes the following substantive deviations from the Department’s existing
commercial remote sensing statutory and regulatory constructs:


License Adjudication: Section 307 of the Act amends 51 U.S.C. § 60121(c) and
mandates new processing deadlines for CRS license applications and reviews.
Under existing law, the processing deadline was 120 days. In sharp contrast, H.R.
4945 truncates the processing deadline by half – mandating that the Department
of Commerce’s licensing timelines comprise only 60 Days, and goes further, by
mandating that any additional “extended review” must take place with 30 days. If
the Department determines that an additional extended review is warranted, the
Department is only granted an additional extended review of 30 days, but said
review can only be undertaken, after a rendered determination by the Secretary of
Defense and the Director of National Intelligence.72
License Denials: Section 307 requires a detailed rationale from the for license
denials be given to a Licensee, and allows for classified briefings to Congress and
the affected Licensee. 73 In its glaring omission, the current statutory authority
See, e.g., H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, § 306(b) (“Department of
Commerce Space-Related Activities”), 14 April, 2016.
70
Id. at FN 31.
71
Id. at FN 31.
72
Id. at FN 63.
73
Id. at FN 63, pp. 90-91.
69
From Here to Ubiquity: The American Space Renaissance Act & Its Impact on the Future of Space
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

does not mandate that any detailed rationale for a licensing action be provided by
NOAA, on behalf of the Secretary of Commerce, to a Licensee.74
Retroactive Licensing Restriction: Section 307 permits compensation by a
Licensee for lost revenue from commercial remote sensing contracts, which were
signed and approved by the Department, under the original licensing action.75
Again, said compensation for lost revenue from commercial remote sensing
contracts does not exist in the existing remote sensing statutory authority.76
List of Approved Countries for Direct Downlink: Finally, Section 307 mandates
the provision of a list of approved countries by the Department of Commerce to a
Licensee, to promote expedited processing of foreign agreement reviews.77 Under
the current statutory authority, no expedited processing of foreign agreements
exists, and certainly, none exists that provides such transparency into the U.S.
Government’s decision-making processes.78
As if these deviations were not striking enough, Title III goes further, by noting
that Government regulations must be updated, in order that innovative, non-traditional
activities,79 such as on-orbit servicing and human habitats, are in compliance with
international treaty obligations80 -- and consistent with its theme of consistency -- provide
a level of regulatory certainty. Additionally, Title III mandates the promulgation of
updated regulations, in order to allow spaceflight participants to receive training in space
support vehicles. Finally, Title III unequivocally and expressly recognizes that
commercial space capabilities are integral to ensuring U.S. leadership in space and in
meeting critical mission needs. Consequently, Title III of the Act mandates that the U.S.
Government leverage and integrate commercial space capabilities – expressly
recognizing that commercial space service providers maintain distributed and
disaggregated constellations that add resilience to space architectures, while (ideally)
concurrently sharing costs across numerous non-government market segments.
Because of the convergence of these new realities in the space environment, the
See, generally, 51 U.S.C. § 60121 (“General Licensing Authority”) and 15 C.F.R. 960.6 (“Review
Procedures for License Applications”), p. 24484, Federal Register, Vol. 71, No. 79, 25 April, 2006.
75
Id. at FN 63, p. 91.
76
But see, 51 U.S.C. § 60147 (“Reimbursements”) which does afford a Licensee reimbursement for
technical modifications imposed by the Government on the Licensee’s licensed system.
77
See, e.g., H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, § 307(b)-(d), 14 April, 2016.
78
See, generally, 51 U.S.C. § 60122(b)(6) (“Conditions for Operation”) and 15 C.F.R. 960.8
(“Notification of Foreign Agreements”), p. 24485, Federal Register, Vol. 71, No. 79, 25 April, 2006.
79
See, H.R. 4945 (114th Congress, 2nd Session, 2015-2016), Title III, § 307(a)(1) (“Department of
Commerce Space-Related Activities”), 14 April, 2016.
80
See, e.g., United Nations. The Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, Including the Moon and Other Celestial Bodies, Signed at Washington, London,
Moscow, 27 January, 1967. This international treaty is commonly referred to as the Outer Space Treaty of
1967. In the United States, the Outer Space Treaty’s ratification was advised by the U.S. Senate, 25 April,
1967, and ratified by the U.S. President, 24 May, 1967.
74
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U.S. statutory and regulatory paradigm must evolve, as well-- to not only meet current
mission needs, but also to be more forward-leaning, responsive and flexible in addressing
future challenges. In response to these new realities and in contravention of many
disparate statutory authorities focused on U.S. space programs and activities, H.R. 4945
further distinguishes itself – both in its anticipation of the advent of novel space
technologies, and in the manner in which the Act expressly addresses how the U.S.
Government will leverage and provide governance of current and future missions.
Finally, and consistent with the aforementioned premises, the American Space
Renaissance Act serves as a seminal piece of U.S. space legislation -- rethinking the
United States’ approach to space and charting a holistic, comprehensive and detailed path
forward for its space enterprise. While the extent of ASRA’s impact on the future of
space in the long-term remains to be determined, the Act’s immediate influence and effect
on current U.S. space programs, activities and the Nation’s ongoing leadership in space
continues to be noteworthy.