Moon Activity Could Face Hazy Regulatory and Spectrum Environment

Increased lunar activity is revealing a host of unanswered spectrum and other regulatory questions, space law experts said Tuesday at an American Bar Association space law symposium in Washington. In addition, legal liability questions about space mishaps are another area with more uncertainty than definitive answers, speakers said.

Pointing to the 2027 World Radiocommunication Conference's agenda item 1.15, which deals with lunar communications, Nese Guendelsberger, FCC Office of International Affairs deputy chief, said that in the near-term, studies will recommend how to handle communications for scientific lunar missions. In the long term, beyond WRC-27, there's a need to examine radio regulation provisions and decide whether lunar communications can use that framework, though with new allocations. The alternative is a whole new lunar communications framework, she said.

Another issue is whether the moon should be the ITU’s Region 4, or a footnote in allocation tables for the existing three ITU regions, Guendelsberger said. Current radio regulation definitions are earth-centric and might need to be re-evaluated for lunar surface communications, she said. Current regulatory language raises questions about whether stations on the moon would be defined as and treated as earth stations or space stations, she said.

The commercial space community is ahead of regulators on decisions about how lunar operations should work, said Jennifer Warren, Lockheed Martin vice president-global regulatory affairs and public policy. Lockheed has applications pending before the FCC about equipment for a lunar communications network and a license to operate its planned lunar communications system using the S, X and Ka bands (see 2305040005). Warren said a fourth ITU region for the moon isn’t necessary. Numerous nations have lunar applications before the ITU. As such, they accept that the ITU has jurisdiction via the existing regulatory framework, she said. “Reinventing a wheel already being used … can be quite problematic,” she said. While numerous topics at WRC-23 were controversial, there was broad international consensus about having a lunar item for WRC-27, she added.

The existing legal liability regime is in many ways a poor fit for space activities, Hogan Lovells aerospace lawyer Argun Garg said. The legal ramifications when something goes wrong in a space mission are unclear, the former FAA chief counsel said. Only a handful of private space actors can indemnify the government for the kinds of sums that could be involved, he said, adding that it’s unclear if many governments could cover the potential reimbursements. Also, a gray area is the lack of tort law handling any outer space claims, he said. Even if liability can be assigned in an incident, measuring damages is difficult, especially calculating financial consequences, Garg said.

The idea of the FCC requiring commercial space operators to indemnify the U.S. from liability for any space mishap is not dead, but there are "practical difficulties" to it moving forward, FCC Space Bureau special counsel Karl Kensinger said. The proposal, which was included in and then removed from the agency's 2020 orbital debris draft order (see 2004230040), was "not well received" by industry, Kensinger said. The agency continues to contemplate the idea, but it's "one of the more challenging aspects" of the still-pending orbital debris proposals, he said.

The FCC is contemplating extending basic guidelines and rules that govern earth's orbit to lunar orbit, Kensinger said. Those guidelines include requiring post-mission disposal and debris-mitigating steps, he said. The challenge is that the moon -- lacking an atmosphere -- requires different means of disposal since satellites won't burn up, he said. Moreover, data about planned trajectories isn't nearly as good as data for earth orbits, Kensinger said.

Don't expect to see a replacement any time soon to the Outer Space Treaty's Article VI, which requires government oversight of non-governmental activities in space, NASA international law practice group lawyer David Lopez said. While Article VI gives little guidance, "government is slow -- when you put a lot of governments together, [it's] even slower," he said. Instead, bilateral agreements are more likely than new treaties, he predicted.

The space insurance marketplace is bifurcating, with cheaper launches and satellites driving down demand for satellite coverage, but planned commercial space stations and expected lunar activity representing expensive missions that the insurance industry might lack the resources to cover, according to Chris Kunstadter, space head at insurer AXA XL. Recent insurance industry losses (see 2308250003) have pushed some insurance companies to reduce or eliminate their participation in space coverage, he said.

Some regulators, though not the U.S., are considering whether a company has the assets to cover a claim if something goes wrong, as well as its qualifications for undertaking the planned missions, the FCC's Kensinger said. Some companies have been denied licenses on that basis, he said. Kunstadter said some regimes, such as the U.K. and France, have instituted space laws that require insuring private on-orbit activities.

NASA is developing LunaNet, a set of networks for users on and around the moon that would integrate communications, position, navigation and timing capabilities, said Jim Schier, NASA chief architect-space communications and navigation. The hope is that other nations and private actors would follow the LunaNet architecture and make their own networks interoperable with it, he said.

LunaNet's current spectrum plan envisions using the X and Ka bands for primary communications between earth and moon, with optical links also possible, and S and Ka bands for communications around the moon, Schier said. He said the distance between the moon and earth should guarantee there isn't S-band interference between its lunar use and use on earth. However, the L band can't be used on the moon the way it is on earth, he said.

Space law isn't the obstacle when it comes to using space resources, said Henry Hertzfeld, George Washington University space policy research professor. Economics is a bigger hurdle, he said. Commercial lunar activities that aren’t dependent on government spending remain many years away, he said.