The U.S. Federal Communications Commission (FCC) is set to reopen the public comment period on potential further amendments to its orbital debris mitigation rules, providing space industry stakeholders with a new opportunity to provide input on regulations with far-reaching implications.  The reopening of the record also further illustrates the FCC’s commitment to leadership in regulating commercial space operations.

The relevant action is a Public Notice issued by the FCC’s Space Bureau, which the agency created last year as part of an effort to increase its role in regulating the fast-growing space economy.  The Public Notice seeks to refresh the FCC’s record concerning proposed amendments to its orbital debris mitigation rules, which generally require that U.S. satellite operators (and non-U.S.-licensed satellite operators seeking U.S. market access) submit to the FCC satellite design and operational strategies intended to minimize the risk of orbital debris.

The FCC last sought comment on these issues in April 2020, when it expanded and refined its existing orbital debris mitigation framework.  In a corresponding move, the FCC also sought input, through a Further Notice of Proposed Rulemaking (FNPRM), on additional rule amendments and proposals related to, among other issues:

  1. How satellite operators may demonstrate that they have adequately assessed and limited the probability of accidental explosions;
  2. How the FCC should evaluate the collision risk presented by large, multi-satellite constellations;
  3. Whether the FCC should adopt a requirement that all non-geostationary orbit (NGSO) satellites planned for operation above a certain altitude maintain propulsion capabilities designated for station-keeping and collision-avoidance maneuvers;
  4. How the FCC should consider human casualty risk, particularly with regard to large, multi-satellite constellations; and
  5. Whether, as a condition of an FCC satellite license, the FCC should require satellite operators to commit to indemnifying the U.S. government for any liability from claims for damage resulting from satellite operations.

The comment cycle for these issues (and others related to orbital debris) ended in November 2020, and the Space Bureau now seeks to refresh the record given the rapid development of the commercial space industry over the past 3.5 years.  (In September 2022, the FCC acted on proposals in the FNRPM related to post-mission disposal deadlines, resulting in the adoption of a new rule that requires operators of NGSO systems operating in low-Earth orbit (LEO) to dispose of these satellites within five years of mission completion.)

Of particular interest to the Space Bureau is stakeholder input on orbital debris mitigation practices for satellite constellations.  With the proliferation of NGSO constellations involving large numbers of satellites, these systems increasingly are the focus of regulatory scrutiny, both in the U.S. and before international regulators.

On this issue, the Public Notice asks, as threshold matter, whether the FCC should evaluate the collision risk presented by a multi-satellite NGSO constellation on a system-wide or per-satellite basis.  The Public Notice seeks comment on a host of related issues, including:

  • If the FCC were to evaluate collision risk on a system-wide basis, should it adopt a safe harbor approach that would allow an operator to show compliance by demonstrating that its constellation meets some pre-determined system-wide collision probability standard (e.g., the U.S. Orbital Debris Mitigation Standard Practices’ (ODMSP) 0.001 probability of collision metric)?
  • What factors should the FCC consider in establishing a safe harbor (or bright-line rule) for its evaluation of collision risk for NGSO satellite constellations?  For example, the Public Notice identifies the following as potentially relevant factors:
  • Maneuvering capabilities and reliability of the satellite(s)
    • Orbital lifetime
    • Number of satellites in the system and, potentially, the constellation replenishment rate (i.e., the rate at which the constellation operator would be launching new satellites to replace aging or defunct satellites)
    • Size of individual satellites
  • Should the FCC assess the potential risk presented by the failure of satellites to complete planned disposal by using an “object-years” metric that considers “the number of years each failed satellite would remain in orbit, summed across any other failed satellites that were part of the satellite [constellation]”?  (Several commenters have proposed 100 “object-years” as a potential metric for the FCC’s risk assessment.)
  • How should the FCC evaluate the likelihood—and potential impact—of individual satellite maneuvering failures within a larger, multi-satellite constellation?
  • If an NGSO constellation operator failed to meet any safe harbor adopted for the FCC’s collision risk assessment, what should the FCC require in its more-detailed review of the operator’s plans to mitigate its constellation’s total collision risk?

In addition, the Public Notice encourages stakeholders to submit new or additional information related to the current orbital debris environment and the state of the satellite industry generally. 

Comments filed in response to the Public Notice will be due 30 days after publication in the Federal Register, which typically occurs within a few weeks of the FCC’s release of an item, though the exact timeline is uncertain (the Space Bureau issued the Public Notice on May 2).  If this holds, the comment deadline could fall around late June, early July.  The reopened comment cycle will terminate on the deadline for reply comments, which will be 45 days after the Public Notice appears in the Federal Register (potentially, mid-to-late July).

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The above summary of the Public Notice is not comprehensive.  Stakeholders interested in providing input to the FCC on its orbital debris mitigation rules should consult counsel if they have questions about the Public Notice or the FCC’s orbital debris regulations.

Photo of Gerard J. Waldron Gerard J. Waldron

Gerry Waldron represents communications, media, and technology clients before the Federal Communications Commission and Congress, and in commercial transactions. Gerry served as chair of the firm’s Communications and Media Practice Group from 1998 to 2008. Prior to joining Covington, Gerry served as the…

Gerry Waldron represents communications, media, and technology clients before the Federal Communications Commission and Congress, and in commercial transactions. Gerry served as chair of the firm’s Communications and Media Practice Group from 1998 to 2008. Prior to joining Covington, Gerry served as the senior counsel on the House Subcommittee on Telecommunications. During his work for Congress, he was deeply involved in the drafting of the 1993 Spectrum Auction legislation, the 1992 Cable Act, the Telephone Consumer Protection Act (TCPA), CALEA, and key provisions that became part of the 1996 Telecommunications Act.

Gerry’s practice includes working closely on strategic and regulatory issues with leading IT companies, high-quality content providers in the broadcasting and sports industries, telephone and cable companies on FCC proceedings, spectrum entrepreneurs, purchasers of telecommunications services, and companies across an array of industries facing privacy, TCPA and online content, gaming, and online gambling and sports betting-related issues.

Gerry has testified on communications and Internet issues before the FCC, U.S. House of Representatives Energy & Commerce Committee, the House Judiciary Committee, the Maryland Public Utility Commission, and the Nevada Gaming Commission.

Photo of Corey Walker Corey Walker

Corey Walker advises clients on a broad range of regulatory, compliance, and enforcement matters in the media, technology, satellite and space, and telecommunications sectors. Corey also provides strategic counsel to leading media, sports, and technology companies on gaming matters, with a focus on…

Corey Walker advises clients on a broad range of regulatory, compliance, and enforcement matters in the media, technology, satellite and space, and telecommunications sectors. Corey also provides strategic counsel to leading media, sports, and technology companies on gaming matters, with a focus on sports betting, fantasy sports, and online gaming.

Corey represents clients before the Federal Communications Commission in connection with a range of policy and compliance issues, including satellite and earth station operations, radiofrequency (RF) spectrum use and availability, and experimental licensing for new and innovative technologies. He also advises clients on structuring transactions and securing regulatory approvals at the federal, state, and local levels for mergers, asset acquisitions, and similar transactions involving FCC and state telecommunications licensees and companies holding private remote sensing space system licenses issued by the National Oceanic and Atmospheric Administration.

Corey also maintains an active gaming and sports betting practice, and routinely counsels companies on state licensing and compliance matters, including those that pertain to fantasy sports and online gaming.

Photo of Santiago Zalazar Santiago Zalazar

Santiago Zalazar is a senior associate at Covington & Burling LLP in Washington, DC and a member of the firm’s Litigation & Investigations Group. He is one of the associate co-leads of the Latino Lawyer Affinity Group at Covington.

Santiago represents clients in…

Santiago Zalazar is a senior associate at Covington & Burling LLP in Washington, DC and a member of the firm’s Litigation & Investigations Group. He is one of the associate co-leads of the Latino Lawyer Affinity Group at Covington.

Santiago represents clients in complex international disputes, including representation of sovereign governments and domestic and foreign corporations from diverse industries in institutional and ad hoc arbitrations involving both common law and civil law systems under ICSID, UNCITRAL, ICC, ICDR, and AAA rules, and multi-jurisdictional federal and state litigation in the United States. He has advised clients on trade and regulatory matters, such as anti-bribery and corrupt practices, economic sanctions and national security laws, and regulation of satellites and associated frequencies by the FCC.

Mr. Zalazar maintains a robust pro bono practice, advising clients on public international law, immigration, housing, and tax matters, and he has been recognized by the District of Columbia Courts for his pro bono services.

Prior to practicing law, Mr. Zalazar worked for the Organization of American States (OAS), the Center for Strategic and International Studies (CSIS), and the Embassy of Argentina in Washington, DC, where he principally assisted in the coordination of the government relations strategy of the Congressional and International Legal Affairs Unit, for which Mr. Zalazar served as a liaison to the U.S. Congress for almost six years.