Reaction to FAA-AST Decision on Bigelow’s Payload Safety Review

In a decision reached Dec. 22 but only recently made public, the FAA-AST wrote to Bigelow Aerospace on their payload safety review request stating that the FAA would leverage its launch licensing authority as best it can to protect facilities, hardware and personnel through zones of non-interference for safety.  Here are some reactions to major questions surrounding the FAA-AST’s response:

How big a deal this is; are we talking watershed moment, thin end of the wedge, or just a bit of paperwork that doesn’t have much in the way of teeth?

Answer:  This is a very important step by the US government to give increased certainty to private investors in new space activities, i.e. activities beyond telecommunications and remote sensing satellite services, such as lunar research facilities or hotels, and asteroid mining.  To be sure, it is certainly not the final step required, not quite a watershed moment but more than the thin end of the wedge.  It is a sign of considerable momentum to establishing a more certain investment environment for companies in new space activities – like a snowball that has gathering mass as it is rolled through all the U.S. Executive Branch agencies — wet snow has become a solid, ice structure as it is packed, now that ball will roll to Capitol Hill to gather further mass.  The US government (FAA AST in consultation with State Dept., Dept. of Defense, NASA, NOAA and other agencies) is saying that it will use its current launch licensing authority as best it can to protect space facilities, hardware and personnel by ensuring zones of non-interference with commercial operations.  The zones of non-interference will only apply vis a vis others being licensed by FAA AST, largely US corporations.  The decision is a sign that the US government is fully engaged in this issue and recognizes the importance of protecting and stimulating private sector investments in new space activities; it puts some “meat” on the “bones” of long-standing US policy to “advance U.S. leadership in the generation of new [space] markets.”  Hopefully, the federal government’s engagement in this issue leads to further steps in the next year or two by the US Congress: first,  to recognize property rights in extracted resources from celestial bodies, keeping in mind that companies will want to use facilities and hardware for such activities,  and second,  to establish a licensing or registration regime for on-orbit or in-space activities that does not over-regulate in a manner that stifles investments in new activities but allows the US government to meet its minimal obligations under the Outer Space Treaty Art. VI to “authorize and continually supervise” US commercial activities in outer space.  In other words, any on-orbit or in-space authority granted by the Congress to the FAA AST for new space activities can and should be “lite” or “light” as that is all that is necessary to meet US international obligations.  In the interim, companies at least know that the payload safety review process can be utilized for protection of facilities, hardware and personnel by ensuring zones of non-interference against other FAA-licensed entities.

How will foreign countries react (including Russia, China and others)?

Answer:  Space activities require huge investments, one of the reasons some level of certainty for private actors is necessary, but it is also a reason that there is competition in space between nations and, of course, some national pride involved.  In contrast to several other major space powers, the US as a matter of national policy is strongly supportive of commercial actors playing as large a role as possible in our nation’s space activities.  China and Russia may very well react negatively given the competitive issues, but they really have no cause to do so.  The step taken by FAA AST to say it will use its launch licensing authority to protect hardware and personnel and ensure safety of operations through zones of non-interference is in full conformity with US international obligations, among them Art. IX of the Outer Space Treaty that calls on countries to show “due regard” for others space activities and consult in advance if a planned activity “would cause potentially harmful interference” with activities of another nation. Moreover, the non-interference zones the FAA will create will only apply between FAA launch licensees, largely US companies.  It is certainly possible that other countries that seek to involve their private sector in space activities will look to the US approach as a model to stimulate their own private sector.  If the US follows-up this first step by recognizing private property rights in extracted space resources, it will also dampen down any negative diplomatic reactions from most countries by simultaneously creating a “lite” regulatory or registration regime for such activities..

How will other commercial entities react?

Answer: Other commercial entities are going to react very favorably to this decision.  This does not just help one company Bigelow but is the necessary starting point for any company pursuing on-orbit or in-space activities.  Protection of facilities, hardware and personnel, and creation of zones of non-interference for safety, are an essential first step for any on-orbit or in-space activity.  Again, there is more to be done for companies pursuing lunar or asteroid mining such as Congress recognizing property rights in extracted space resources, and establishing a “lite” or “light”  licensing or registration regime for on-orbit or in-space activities that will allow the US to meet its international obligations and also help dampen down any negative diplomatic reactions from other countries to establishing zones of non-interference for safe operations and recognizing property rights in extracted resources.

On-Orbit Jurisdiction, including link to Property Rights Issues and Other New Space Activities, the Focus of 7th Annual Univ. of Nebraska Washington, DC Space Law Conference

I thought I would share the agenda for Univ. of Nebraska’s 7th Annual Washington D.C. Space Law Conference (registration is free at but spaces are limited):

University of Nebraska
7th Annual Washington, D.C. Space Law Conference
November 3, 2014
National Press Club
529 14th St. NW, 13th Floor
Washington, DC 20045

Public Panels: On-Orbit Jurisdiction – Challenges and Opportunities

Currently, the FAA only has express regulatory authority to license launches and re-entries but not on-orbit or in-space activities. While some have argued FAA or other federal agencies have implied or inherent authority to so regulate, agencies are unlikely to act based on these types of arguments, rather awaiting express authority from Congress. Many new space activities are on the near horizon, including commercial human space flight, asteroid mining, lunar and orbital private research labs and hotels, and on-orbit servicing of satellites. Private investors are seeking certainty for their investments, including private property rights, as well as safety from interference in their activities by others. However, the US commercial space sector is also concerned that heavy-handed regulation in the early stages of such activities could inhibit the activity or drive investment abroad, and thus seek to limit any on-orbit regulatory authority to be “light” in nature. The US government is anxious to ensure compliance with treaty obligations requiring it to authorize and continually supervise its commercial actors’ space activities to ensure compliance with treaty obligations. Foreign country reaction to US commercial activities in space may also depend on whether the US has a sufficient regulatory regime in place, one that for example would prevent contamination of Earth or celestial bodies in the case of mining, or risk to neighboring satellites during on-orbit servicing. Panel I will discuss government and industry views on the issue of on-orbit jurisdiction (or in-space regulatory authority) and Panel II will delve deeper into specific views of two sub-sectors of the US commercial space industry, those concerned with property rights and the sub-orbital marketplace.

11:30-12:40AM Public Panel I – “On-Orbit Jurisdiction: Government and Industry Views”

Laura Montgomery – Manager, Space Law Branch, FAA (confirmed)
Karl Kensinger – Deputy Division Chief, Satellite Division, FCC (confirmed)
Glenn Talia – Section Chief, Weather, Satellites, and Research Section, NOAA (confirmed)
Caryn Schenewerk – Counsel & Director of Government Affairs, SpaceX (confirmed)
Russ McMurry – Senior Counsel, Boeing Network & Space Systems (invited)
Franceska Schroeder – Principal, Fish & Richardson (confirmed)

Moderators: Professor Frans von der Dunk –Nebraska Law & Dennis Burnett – Vice-President, Kymeta

12:40-1:30PM Networking Lunch

1:30-2:30PM “On-Orbit Jurisdiction – Perspectives from Different Elements of Space Sector – Views from Property Rights Interests and Sub-Orbital Activities”

Mike Gold – Chair, COMSTAC (confirmed)
Peter Marquez – VP for Global Engagement, Planetary Resources (confirmed)
Marc Holzapfel – Senior VP & General Counsel, Virgin Galactic (confirmed)
Brett Alexander – Director of Strategy and Business Development, Blue Origin (invited)
Patti Grace Smith – Principal, PGS Consulting (confirmed)
Jim Muncy – Principal, PoliSpace Consulting (invited)

Moderators: Professor Matthew Schaefer- Nebraska Law & Dennis Burnett – Vice-President, Kymeta

Property RIghts in Space (Part II): Post-NewSpace Conference Thoughts – Posey ASTEROIDS Act, Bigelow Payload Safety Review, On-Orbit Jurisdiction, Etc.

To begin, the discussion today served as good evidence that property rights issues in space are indeed a mix of law, policy, politics, diplomacy, and technology. Thanks to my fellow panelists and the audience.

1) Resources extracted from lunar bodies and asteroids can be brought back to Earth and utilized and sold and “owned” in that sense. There should be no debate over this (Jim Muncy reminded the audience today of the Apollo example, and Sagi Kfir and Berin Szoka reminded the audience of numerous Soviet/Russian examples of resources samples be returned to Earth and owned by the extracting nation and even sold in some cases).  In other words, there should be no controversy over that aspect/provision within Rep. Posey’s ASTEROIDS Act of 2014. Indeed, the act should specifically state that the granting of a property interest in extracted resources is consistent with international law.

2) Non-interference rights with regard to surface and potentially sub-surface activities: A non-interference principle is certainly appropriate and consistent with international space law, including Art. IX of the Outer Space Treaty that obligates countries to show “due regard” for the interests of other nation’s space activities and requires advance consultations when a nation undertakes an activity in space that “would potentially cause harmful interference” with another nation’s space activity. Bigelow Aerospace’s payload safety review request speaking in terms of operational zones that would be “organic” or variable depending on the activity and Rep. Posey’s ASTEROIDS Act are indeed moving along the correct path. Of course, FAA may wonder whether it can grant operational zones in a payload safety request under its current authority but the safety zones established around the ISS do provide some precedent. Jim Muncy argued that Secretary of Transportation has inferred or implied jurisdiction over things that normally think of going beyond launch phase such as national security considerations and indeed claimed the ISS safety zone was done under authority to protect the general public.

If the Congress went so far as to legislate something akin to the Space Settlement Institute’s proposed Space Settlement Act’s provisions ( e.g. requiring government to recognize claims of private companies on Moon to upwards of 600,000 square miles –4% of surface — if company permanently inhabits settlement with regular transportation) the backlash internationally would be much greater.

3) How else might Posey ASTEROIDS Act legislation be improved? Rep. Posey’s ASTEROIDS Act gives non-interference rights if entity is first in time, if derived on a reasonable basis, and if the activity is in accord with international obligations of the United States. It refers in the preamble to promoting exploration and use of asteroids but when defining an asteroid mining utilization entity, it speaks in terms of a company that explores or utilizes. Further, the non-interference right applicable between entities the US exercises jurisdiction over applies to resource extraction utilization activities. Accordingly, the Act must undergo a legal scrub to ensure it is more clear on exploration v. utilization (and the use of “and” v. “or”).

The broader policy question is how much does a company have to do in terms of exploration or use of an asteroid, i.e. what operations does it need to undertake, in order to have it gain a superior right on a reasonable basis? Or to make things even more complicated what about moving the asteroid itself and how much movement woul Everyone agrees peering through a telescope at an asteroid should not be sufficient, but should an entity actually have to start extracting actual mineral in order to have a “reasonable basis” for asserting a superior right? Sagi mentioned he thought the line should be based on tele-presence, telemetry/tracking, and tele-robotics (including, for example, manipulation of soil and soil samples). Naturally, we should avoid any possibility of “paper” asteroid rights with trivial efforts. Of course, some of the line drawing can be left to agency interpretation and agency implementation and indeed it might be useful if Congress is not too specific in its line drawing given such lines might be drawn better after some actual practice takes place. Nevertheless, Congress should lay out more clear guidance that elaborates the policy choice. (And, of course, this does not address the additional question of what about moving the asteroid itself and how much movement would suffice to create a non-interference right? A reception discussion with Rand Simberg led to a possible standard of must just not move any distance but must move to a commercially or economically justifiable or beneficial place).

Improvements to Posey ASTEROID Act might also include specifically stating that resource extraction activity itself is consistent with international obligations (to remove any doubt or argument given the Act conditions a superior non-interference right on an activity being in accord with international law. Further, as discussed above, the granting of property rights in extracted resources should also be declared consistent with international space law. Sagi and Berin also noted in the discussion that the Act does not define the term asteroid.

4) Link to On-Orbit Jurisdiction Issue – There is debate over whether express on-orbit jurisdiction granted to FAA is necessary before the Executive Branch can act or whether it already has sufficient authority (in FAA payload safety reviews or on the basis of foreign policy or national security) to support immediate action (see above).  But if Congress expressly grants on-orbit authority should it go to FAA AST or another agency in US government?  First, one should realize that whatever agency it resides within, it will likely have to be a heavy inter-agency process in any event. Second, one needs to realize the US State Department may very well be keen on some express on-orbit authority being given to some US agency by Congress in order to ensure US compliance with OST Art. VI’s obligations to “authorize and continually supervise” US commercial space activities. Third, industry seems most keen on avoiding overly burdensome regulation, particularly early in the process. Sagi and Jim both warned that the government cannot regulate too quickly and should not be placing barriers to activities. Rather, government should be acting in a promotional role. Fourth, FAA AST has highlighted in testimony with respect to this issue that it plays both a regulatory role and a promotional role for the industry. That probably places FAA AST in a good position to garner the on-orbit authority if and when Congress expressly grants it to a US agency even if some in industry worry that FAA AST could in the long-term slide emphasis to regulation rather than promotion. Fifth, and finally, it will be key to ensure any on-orbit authority is “lite” and not “heavy,” ensuring US compliance with international supervision obligations but not stifling or hampering industry. (BTW, I disagree that “continually supervise”in the OST means 24/7/365 monitoring. The terms does not need to mean “unceasingly” but simply can mean “at regular intervals” but time and space here does not permit a full Vienna Convention on Law of Treaties Art. 31-32 analysis).

5) What is impact of 2003 Braibanti letter on US flexibility now with respect to property rights? [Note: “In a letter dated 15 Aug 03, Ralph L. Braibanti, the Director of Space and Advanced Technology in the Department of State�s Bureau of Oceans and International Environmental and Scientific Affairs, wrote, “We have reviewed the “Notice” dated February 13, 2003, that you sent to the U.S. Department of State. In the view of the Department, private ownership of an asteroid is precluded by Article II of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Accordingly, we have concluded that your claim is without legal basis.” See ]

I would argue none at all. The context of that letter was a company OrbDev claiming an asteroid with no physical exploration or extraction or movement of the asteroid. OrbDev sent a bill to NASA for rent/parking and the Braibanti letter was in response to that unique context and situation.


Property Rights in Space (Part I): When Talking Property Rights in Space, Limit References to the Moon Treaty Please

Looking forward to moderating a panel discussion at NewSpace 2014 tomorrow July 25th at 10:45AM  in San Jose, CA  on property rights in space and will be joined by Sagi Kfir (Corporate Counsel, Deep Space Industries), Jim Muncy (Co-Founder, Space Frontier Foundation), and Berin Szoka (President, Tech Freedom).  We will have an interesting discussion that will include Bigelow Aerospace’s payload safety review request, Rep. Posey’s ASTEROIDS Bill of 2014, and proposed Space Settlement Acts among other topics.  Will be following up with a blog post about the discussion tomorrow.  However, we will not be talking about the Moon Treaty (at least not very much).  For the United States (and many of the most active space nations), the Moon Treaty is legally irrelevant in virtually all respects.  First, under international treaty law (see Vienna Convention on Law of Treaties Art. 34), treaties only create rights and obligations for parties to the treaty.  The United States is not a party to the Moon Treaty and let’s be honest never will be (at least without major adjustments).  Indeed, the Moon Treaty only has 15 countries that have ratified it (i.e. become party to it) and an additional four countries that have signed but not yet ratified it.  No major space-faring nation is among the ratifying nations.  As a matter of treaty law, it does not bind the United States nor any other major space-faring nation.

Occasionally, one will hear arguments that certain rules of the Moon Treaty represent customary international law.  Indeed, multilateral treaties can be pointed to as one piece of evidence of state practice.  However, a state practice must be generalized and consistent among nations to even stand a chance of becoming customary international law and 15 nations support of a rule is not generalized.  Moreover, even if one wanted to continue to argue that certain rules in the Moon Treaty are customary international law because supported by other practice outside the Treaty itself, the United States would certainly be a persistent objector to any rules in the Moon Treaty that go beyond rules in the Outer Space Treaty (OST).  The United States government has made known its objection to the Moon Treaty since its inception.  Again, the Moon Treaty may be on the fringe part of space diplomacy and diplomatic arguments, but it simply is not in play in the legal arena as regards the United States and other major space-faring nations.  Thus, you will not be hearing much, if at all, about the Moon Treaty tomorrow.  Here is what we will be discussing:

1) Is it clear enough that resources extracted can be brought back to Earth  and utilized and sold and “owned” in that sense?  Or do you sense debate over even this?  In other words, should there be any controversy over that aspect/provision within Rep. Posey’s ASTEROIDS Act of 2014?

2) Would a non-interference principle be sufficient in terms of allowing protection of activities on-orbit or are greater property claims/rights needed? Compare, for example, Bigelow Aerospace’s payload safety review request (speaking in terms of operational zones that would be “organic”  or variable depending on activity) v. the Space Settlement Institute’s proposed Space Settlement Act’s provisions ( e.g. requiring government to recognize claims of private companies on Moon to upwards of 600,000 square miles (4%) if company permanently inhabits settlement with regular transportation)

3) Do you agree the ASTEROIDS Act of 2014 provision that grants a cause of action within domestic US federal courts to private entities whose non-interference rights are not respected?

4) What should the US (Congress) do to support property rights and non-interference principles?  Any particular legislation you support or provision you think would be most beneficial?

5) Is express on-orbit jurisdiction granted to FAA necessary before the Executive Branch can act or does sufficient authority (in FAA payload safety reviews or on the basis of foreign policy or national security) already exist to support immediate action?  What is impact of 2003 Braibanti letter on US flexibility now? What is your take on whether FAA or another agency in US government needs on-orbit jurisdiction?  And if so what should it look like? (Whatever agency it resides within, it will likely have to be a heavy inter-agency process in any event).

6) What is required of the US government to comply with the OST’s Art. VI obligation to “authorize and continually supervise” US commercial activities?  Specifically, what is meant by “continually” supervise?

7)  How do you think other countries will react to any US property rights or non-interference legislation?  Doesn’t Art. IX of the OST that already requires countries to give “due regard” to the interests of other nation’s space activities and requires advance consultations if a planned activity “would cause potentially harmful interference” with other nations’ space activities, justify adoption of a non-interference norm domestically? Does the”safety zone” established around the ISS provide a model? Is there a way to encourage or lead other countries to follow any US model adopted?

8) What level of certainty do companies (and, of course, it depends on the company and their capital structure) need on property rights in order to proceed with plans and to stimulate investment?

More tomorrow after our discussion!

(C) Copyright:  Matthew Schaefer.  All rights reserved.


Competitiveness in the Launch Services Industry – Impact of Various Factors in the Launch Contract and in Liability Provisions of Government Launch Regulations

As I mentioned in my last blog, the ABA Air and Space Forum had an interesting Space Law Symposium last week.  Included among the panels was one on launch vehicle contracts that had representatives from SpaceX, Arianespace, and ILS.  One important perspective to examine and compare some of the topics covered and main points made at the ABA Symposium’s launch contracts panel is competitiveness.  Keep in mind price is likely the primary factor in customer decisions, but price can be influence by many other factors:

  1. Dispute Settlement: Arbitration is the typical dispute settlement mechanism chosen in launch contracts, although disputes are often settled more informally. No surprise given that many customers are repeat customers and arbitration has become a bit more litigation-like, in terms of increase costs, length of proceedings, etc. It used to be thought that arbitration was preferable to litigation in part because companies were better able to preserve existing business relations, but in the space industry launch companies are leery of even resorting to the arbitration clause except in the most extreme circumstances due to the desire to keep existing customers and the competition among launch companies (i.e. fear of customer contracting with a competitor).
  2. Export Credit: Both the US Ex-Im Bank and the French export credit agency (COFACE) are involved in satellite manufacture and launch financing. Indeed, Ex-Im’s satellite financing is the fastest growing sector in its portfolio. This development eliminates the competitiveness disadvantage that would occur to US launch companies and satellite manufacturers if COFACE was in the game and Ex-Im Bank was not. ILS in turn is interested in taking advantage of a new Russian export loan guarantee program. Interestingly, COFACE financing can even indirectly benefit US launch providers. For example, COFACE was involved in financing Iridium satellites built by Thales Alenia and launched by SpaceX. Sure enough, since the financial crises of 2008, export credit agencies are playing an increasingly important role in satellite deals.
  3. Space Insurance & Re-Launch Guarantees: Although launch companies often offer re-launch guarantees, they are rarely part of the launch contract as they are not a popular option among launch customers. Customers prefer to purchase launch insurance in a package of insurance coverages that might lessen total insurance cost and keeping in mind that re-launch guarantees do not come for free – one way or another they have to be built into the launch price. Thus, launch companies are not competing amongst one another through the offering of re-launch guarantees – offering such policies has little to no impact on competitiveness. (One additional interesting note – a few customers do not purchase launch insurance and simply self-insure against such a possibility or assume the risk).
  4. Third-Party Liability: France caps third-party liability of Arianespace launches at roughly 60 million euro. Arianespace purchases insurance for that amount but is not responsible for any damages exceeding that amount. Russia, in essence, caps liability for large rocket launches such as the Proton at $300 million dollars. In the United States, a three-tiered regime exists: In the first tier, launch companies must obtain insurance covering the Maximum Probable Loss (MPL) –it averages around $80-90 million, although recent SpaceX launches have MPL’s as low as $36 million. In the second tier, the US government promises to indemnify companies for the next $2.8 billion in third-party damages, although it is important to realize that in order for this promise to be realized it will take an appropriation law passed by Congress.  Further, this promise of indemnification has lapsed for short periods and has only been extended for one to three years when renewals have occurred recently. The current promise of indemnification expires January 2017. In the third-tier, that applies whenever third-party damage exceeds the first-two tiers ($2.8 billion plus MPL), the liability reverts to the operator. In short, US launch industry’s competitors benefit from a third-party liability cap while the US launch industry relies on limited promises of government indemnification. Since liability regimes impact contractual negotiations and could ultimately impact launch price, US industry is placed at a competitive disadvantage in this respect.

(c) Copyright: Matthew Schaefer.  All Rights Reserved.

Stopping Intentional RFI – Some Additional Thought Post-ABA Space Law Symposium

I attended the ABA Air and Space Law Forum’s Space Law Symposium last week (6/10/2014) at Jones Day law firm in Washington, D.C. There were plenty of interesting panels, including one on radio frequency interference (RFI), that inspired a few follow-up thoughts and points to (re)emphasize from my three part blog last week on the search for concrete enforcement tools to combat intentional RFI with satellites.

Inter-Relationship Between US-EU Tools and ITU Efforts

Efforts are underway to improve and strengthen ITU processes in instances of intentional RFI, however, these efforts are unlikely in the near term to lead to real enforcement “teeth” for the ITU given the largely one-nation, one-vote processes within the 193 member nation ITU. Unilateral action in tandem by the US and EU to enact and implement two concrete enforcement tools, namely (a) including compliance with ITU harmful interference obligations and cooperation with ITU and other processes to halt instances of intentional RFI as an eligibility criteria for trade preference programs like the Generalized System of Preferences (GSP); and (b) imposing sanctions against individuals engaged in intentional RFI by freezing their assets and bank accounts – does not foreclose continuing to seek in parallel stronger ITU obligations and processes. In fact, in addition to providing more immediate “teeth” to stop cases of intentional harmful interference with satellites, these measures taken in tandem by the EU and US may buttress efforts to strengthen processes in the ITU. Countries facing the possibility of “sanctions” measures from the two largest markets in the world may simply prefer to have strengthened ITU governance and enforcement of the issue.

“Multilateralizing” Sanctions

The US and EU can work to expand the GSP eligibility criteria to other industrialized nation’s offering trade preferences, but, the US and EU are the two markets that already contain good governance and human/labor rights-related conditions for eligibility. Additionally, sanctions against individuals can be crafted in a way that does not penalize EU and US satellite companies from business opportunities (e.g. simply go after bank accounts of individuals) and/or efforts can be made to “multilateralize” such sanctions to also eliminate any potential competitive disadvantage to EU and US satellite operators. With predictions made that most intentional RFI is mostly driven by “rogue regimes” into the future, sanctions used for other significant foreign-policy interests may make sense in the case of intentional RFI as well, although the RFI issue may inevitably take a backseat to other higher foreign policy interests in certain cases. Cases of intentional RFI have dramatically increased over the past five years, and although there may be some leveling off very recently this year, it’s use as an anti-democratic, anti-human rights tool will likely continue if further action to curb it is not taken.

Technological Solutions and their Relationship to Concrete Enforcement Tools and ITU Processes

Technological developments continue apace in the fight against intentional RFI. These include enhanced geolocation and carrier ID as well as data sharing in the Space Data Association. These developments will help quicken the cure in cases of unintentional interference but will also help in cases of intentional interference in assigning responsibility and reducing chances for plausible deniability. This in turn could lead to better cooperation by certain administrations with the non-binding ITU processes but also strengthen the case for use of enforcement tools described above when enhanced cooperation from the more definitive, assigned responsibility does not result.

Again, stay tuned for more on stopping intentional RFI in my forthcoming article.

Also, stayed tuned later this week for one more blog (non-RFI related) flowing from the ABA Space Law Symposium.

© Matthew Schaefer. All rights reserved.

Part III – IEEPA Sanctions v. Individual Gov’t Officials – The Search for Concrete Enforcement Tools re Intentional RFI with Satellites

One additional option for a concrete enforcement tool to stop intentional RFI against satellites is for the US and European governments to sanction individuals (even government officials) engaged in intentional RFI with satellites.

Options #3: Employ International Emergency Economic Powers Act (IEEPA) Authority to Sanction Individuals (including foreign government officials) Engaged in Jamming Satellite Signals in A Manner Injurious to US National Security or US Economy.

Some of the RFI incidents meant to stop information flows to citizenry in particular countries has caused collateral damage that has disrupted US military, diplomatic, and other government (e.g. FBI) communications.  The IEEPA gives the President broad authority “to deal with any unusual and extraordinarythreat, which has its source in whole or substantial part outside theUnited States, to the national security, foreign policy, or economy ofthe United States, if the President declares a national emergency withrespect to such threat.” Specifically, the President may, among other actions, “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States….” Recently, the President used IEEPA authority to sanction former and current Russian officials involved in the situation in Ukraine and also individuals involved in the arms sector and other important sectors of the Russian economy.

The President presumably has the authority to use IEEPA to sanction government officials involved in the jamming of satellite signals if the action or the collateral consequences of such actions threaten US national security or the US economy. Even making rumblings of using such authority for intentional RFI used to suppress democratic movements and/or an informed citizenry could help increase cooperation of officials responsible for the intentional RFI or responsible for taking necessary actions under the ITU radio regulations to stop intentional RFI from occurring. As stated by the Director of Treasury Dept.’s Office of Foreign Assets Control (OFAC) in a 2007 report: “The impact of these sanctions has been significant and, at times, dramatic. When OFAC designnates an individual or entity, any assets within the United States or the possession or control of a U.S. person anywhere in the world, must be frozen. Trade with or through the United States is cut off. Moreover, many non-U.S. businesses and banks have voluntarily severed all ties with individuals and entities that OFAC has listed. As a result, designated persons may lose access to their bank accounts outside the United States, disrupting their operations and freedom of access.” Of course, if the officials do not have assets abroad in the US or in the possession or control of a US person, the sanctions may not have much impact unless non-U.S. businesses and banks do in fact follow suit. (Russian Deputy Prime Minister Dimitry Rogozin tweeted out this point to President Obama following his listing under the recent Executive Orders). The EU has also blocked the assets of individual Russian officials involved in the Ukraine situation, although achieving consensus among the 28 EU member states for these types of sanctions can be difficult. See


Summary of Part I, II, III of “In Search of Concrete Tools”: A few concrete (legal) enforcement tool options to assist in stopping intentional RFI do exist – two in the hands of governments (Option 1 of making compliance with anti-harmful interference obligations an eligibility criteria for developing countries under GSP and other trade preferences and Option 3 of imposing economic sanctions against individual government officials) and one in the hands of private operators suffering RFI (suit in domestic courts under FSIA or analogous statutes).   The governmental options will not interfere with any US or European government military freedom, at least not directly. The question is whether concern over intentional RFI (and its collateral consequences) has reached a level that will have the US and EU governments consider adoption of either of the governmental options. Development of real enforcement teeth within the ITU is unlikely, although again those processes can be further strengthened. I should reiterate that technology plays a very important role in solving the problem, and the law is there to buttress or backstop the technological developments.

Again, stay tuned for my forthcoming article on this topic.

© Copyright: Matthew Schaefer. All rights reserved.

The Search for Concrete Enforcement Tools to Stop Intentional RFI with Satellites – Part II – Suit in Domestic Courts?

Last Thursday, building upon my May 22nd remarks at the 30th Annual National Space Symposium RFI panel sponsored by Secure World Foundation, I suggested a possible concrete enforcement tool to help stop intentional radio frequency interference. Specifically, I recommended that the US and the EU give strong consideration to making compliance with ITU prohibitions on harmful interference and cooperation with ITU and other processes to resolve instances of RFI an eligibility criteria for developing countries to receive trade preferences under the Generalized System of Preferences. Another potential (new, “outside-the-box”) concrete tool that I mentioned in Colorado Springs, one that I think is likely to be less successful and more problematic but still worth analysis, is suit in domestic courts against the foreign country (or foreign country-owned operator or agency) engaged in intentional RFI impacting satellites.

Option #2: Suit against Foreign Nation (or Foreign Nation-owned operator or agency) engaged in intentional RFI under the FSIA in the US Courts (or analogous statutes in European countries)

Suing a foreign nation in another country’s domestic court system raises issues of foreign sovereign immunity. International law no longer requires that absolute immunity be given to foreign sovereigns in such situations, but rather the “restrictive theory” of immunity – one that acknowledges exceptions to immunity, particularly for commercial activity, is now all that is required by customary international law. In the US, suit of a foreign sovereign is governed by the Foreign Sovereign Immunity Act (FSIA) and it is that statute that will provide the framework of our analysis. Many countries have similar statutes, although with different or lesser exceptions to immunity present.

Would a suit against a foreign nation in US courts for intentional RFI with a satellite be possible? Well, we should perhaps first begin by saying anyone thinking of attempting such a suit would have to consider any “out-of-court” retaliatory penalties that might be brought to bear by the foreign nation upset with the filing of such a suit. Any entity thinking of such a suit would also need to consider whether they would want to reveal “methods” of establishing the intentional RFI was taking place as part of the necessary evidence to prove their case.

With those preliminary considerations acknowledged, a suit against a foreign sovereign in US courts necessarily has one turn first to the FSIA. The FSIA provides the sole basis of jurisdiction (both personal and subject matter) over of foreign state in US courts; the establishment of jurisdiction is linked to finding an exception to immunity. Foreign states are presumed immune unless the statute provides an exception to immunity. The definition of foreign state includes agencies and instrumentalities of the foreign state. The exception that is most widely-used is the commercial activities exception (Sec. 1605(a)(2)).

The commercial activities exception, in the third clause, allows for an exception to immunity “in which the action is based upon … an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” Intentional RFI by the foreign nation would take place outside the territory of the US. However, several hurdles also need to be cleared. First, is RFI done “in connection with a commercial activity of the foreign state”? Second, does the RFI cause a “direct effect” in the United States? As regards commercial activity, the statute, although not defining the terms, does instruct courts to look to the nature not the purpose of the activity. The US Supreme Court has defined commercial activity to be the type of activity by which a private player in the market engages in trade, traffic and commerce. Thus, it should not matter whether RFI is done for the purpose of inhibiting information flow to citizenry or to quell potential democratic uprisings. It is the nature of the activity that matters. If one narrowly defines the activity as simply RFI, then RFI does not seem to be the type of activity by which private (satellite) operators engage in trade, traffic, and commerce. But if one defines the activity more generally as temporary negative actions to defeat a competitor’s market share or reputation for reliability, that could push a court closer to finding the nature of the activity to be commercial.

For those familiar with key US Supreme Court cases in the area, think back to the Nelson case, where the Court found beating and imprisonment of an employee to not be commercial activity. However, if the activity were argued to be whistleblower retaliation – Nelson had reported safety violations at the hospital he worked at — it might have come closer to a commercial activity.

Additionally, the third clause of the FSIA commercial activities exception refers to an action “in connection with a commercial activity” and thus provides a bit of flexibility for what might be captured by the exception.  As for direct effect, the question is whether a loss of money flowing into a US bank account and/or lost profits to a US corporation are sufficient to meet that condition. Some lower court opinions suggest at least one of those may be sufficient. In sum, suit under the FSIA commercial activity exception to establish jurisdiction appears difficult but not necessarily impossible where a foreign state-owned operator or one of its agencies is engaging in RFI. What is impossible is a claim against a foreign nation’s regulatory agency for refusing to “go after” a private operator engaging in intentional RFI because the foreign nation is then acting clearly in a regulatory (non-commercial) nature.

Additional hurdles might need to be cleared and additional complexities might arise once jurisdiction is established. ITU regulations do not create private rights of action in the United States according to court decisions and thus they cannot form the basis for a private right of action. The tort exception limits the type of claims that can be made – so would have to find an appropriate tort claim covering the activity. Questions arise as to which nation’s tort laws should be applied after undertaking conflict of laws analysis. Further, it is possible that arguments might be made that federal law preempts state tort law claims for RFI in space. And, of course, enforcing such a judgment could raise additional complexities under the FSIA. The US Executive Branch is also likely to file an amicus brief in opposition as the US government would not want to be exposed to suit in foreign court. (Remember a key benefit of proceeding with Option #1 – eligibility criteria for trade preference status by developing countries – is those obligations are one-way and in no way implicate US or European military actions – see prior blog post).

In sum, there are enough hurdles to be cleared and potential pitfalls with the FSIA option that any litigant would need to be satisfied that filing an even unsuccessful suit is still a useful addition to the “name and shame” approach to stopping intentional RFI with satellites.

You can find more detailed analysis in my forthcoming article.

© Copyright: Matthew Schaefer. All rights reserved.

The Search for Concrete Enforcement Tools to Stop International Radio Frequency Interference with Satellites

Two weeks ago, I sat on a panel on radio frequency interference with satellite services and its impact on space sustainability at the 30th Annual National Space Symposium in Colorado Springs.  The panel was hosted by the Secure World Foundation and moderated by their President Mike Simpson.  Satellite operators are frustrated by the lack of “concrete tools” or enforcement mechanisms available to stop episodes of intentional harmful interference and ensure that International Telecommunications Union (ITU) Constitution Art. 45 (prohibiting all stations from causing harmful interference) and the ITU radio regulation No. 15.1 (prohibiting unnecessary and superfluous transmissions and false and misleading signals) are complied with.  Keep in mind that jamming of signals often has unintended consequences and causes wide-ranging effects in some cases.

The ITU made public appeals to a government to stop intentional RFI with satellite signals for the first time in 2010, however, the success of this “name and shame” approach has been limited.  In 2012, modest changes were made to ITU’s radio regulations seeking to emphasize the need for national administrations to take action to stop RFI when presented with evidence.  Radio Regulation 15.21 now reads: ” If an administration has information of an infringement of the Constitution, the Convention or the Radio Regulations (in particular Article 45 of the Constitution and No. 15.1 of the Radio Regulations) committed by a station under its jurisdiction, the administration shall ascertain the facts and the necessary actions.”  However, there are still no teeth behind the obligation to ensure its enforcement.  The ITU Radio Communication Bureau and the Radio Regulations Board can seek to assist and issue recommendations but these are not binding.  It is unlikely the ITU will be granted enforcement powers.  Similarly, the major space treaties, such as the Outer Space Treaty, fail to contain enforcement mechanisms. (For a good background read on RFI and also ITU and space treaty weaknesses in addressing RFI, see Sarah Mountin, The Legality and Implications of Intentional Interference with Commercial Communications Satellites, Vol. 90 International Law Studies (of the US Naval War College), available at

However, there exist some options for “concrete tools” or enforcement mechanisms as I mentioned during my talk at the National Space Symposium.

Those concerned with intentional RFI with satellites can take some loose inspiration from the intellectual property community who grew frustrated with IPR treaties lacking enforcement teeth, and subsequently worked beginning in the late 1980′s to have IP obligations engrafted into US trade preference programs, free trade agreements, and even the World Trade Organization – using those as concrete tools to enhance enforcement of IP obligations.  (Those mechanisms to be sure are not perfect, and indeed RFI solutions lie primarily with the engineers and techs but law can buttress and provide a backstop in egregious cases).

Option #1: The US and EU can make compliance with ITU Constitution Art. 45, Radio Regulation No. 15, and full cooperation with ITU or other processes to stop RFI an eligibility criteria for the Generalize System of Preferences (GSP) and other trade preference programs for developing countries.  In fact, it will be important for the EU to act in tandem with the US because several countries alleged to be engaged in intentional RFI benefit from EU trade preferences but not US trade preferences.  The benefits of this approach are numerous: 1) it provides enforcement teeth to the ITU obligations on harmful interference; 2) it will not cause any concerns or diplomatic issues with the vast majority of GSP beneficiary countries who do not engage in intentional RFI and who are already accustomed to eligibility criteria requiring effective IPR protection, compliance with international labor standards, reducing of foreign investment barriers, and others; 3) the eligibility criteria can be reviewed in manner that are mindful of the ITU Constitution’s exception for security and public order (Art. 34) and for military stations (Art. 48) and other exceptions; 4) it is a pro-democracy measure as many major incidents of intentional RFI in the past-five years have been undertaken in efforts to stop information flows to citizenry and  (potential) democratic uprisings; 5) it is a pro-human rights measure given the International Covenant on Civil and Political Rights Art. 19(2) provides: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” – although there is a public orders exception here too; and 6) because the obligation is one-way it will in no way impede US military operations which in any event are covered by the aforementioned exemption in ITU Constitution Art. 48 – and for that reason the US should take care before placing such obligations in free trade agreements that have two-way flowing obligations.

Of course, this solution is an enforcement mechanism only for those countries that benefit from trade preferences from the EU or US – but that is over 140 countries.

Stay tuned to this blog for a couple more new, “out-of-the box” ideas on concrete enforcement tools for the ITU’s harmful interference obligations – one of which I mentioned in Colorado Springs and one additional one.  I have an article coming out on all of these possible enforcement tools in the near future too.

(c) Copyright: Matthew Schaefer.  All rights reserved.