Will it soon be easier to operate a commercial remote sensing satellite...

Will it soon be easier to operate a commercial remote sensing satellite in the US?

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the recently approved American Space Commerce Free Enterprise Act of 2017 covers numerous space-related activities, including commercial remote sensing satellite systems.

The US House of Representatives Committee on Science, Space and Technology recently approved the American Space Commerce Free Enterprise Act of 2017. The Act covers numerous space-related activities, including commercial remote sensing satellite systems. The Act could drastically improve the current regulatory regime for operating commercial remote sensing satellites. However, there are a number of challenges ahead before it becomes law.

Act streamlines the licensing process

In general, the Act greatly simplifies and streamlines the licensing process for applicants wishing to launch and operate a commercial remote sensing satellite. For example, the Act requires applicants to provide much less information than is required under existing law. Moreover, the time period for a decision on the request is reduced to 60 days.

An application may be approved with or without conditions. However, if a condition is imposed, the Secretary of Commerce, acting through the Office of Space Commerce, must provide applicants clear guidance as to why a condition has been imposed in a license and what the applicant can do to address the condition in a subsequent application.  Perhaps most importantly, the Office of Space Commerce may not deny an application or impose a condition “for which the same or substantially similar capabilities, derived data, products, or services are already commercially available or reasonably expected to be commercially available in the next three years in the international or domestic marketplace”. The Act further provides that “[t]the exception in the previous sentence applies regardless of whether the marketplace products and services originate from the operation of aircraft, unmanned aircraft, or other platforms or technical means or are assimilated from a variety of data sources.” This exception is important because it recognizes that the commercial remote sensing satellites are part of a larger, and fast-changing, geospatial ecosystem.

The Office of Space Commerce may deny an application. However, it must clearly articulate to the applicant the rationale for denial. In addition, it must include details of how the issues could be addressed in a future application.

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Act addresses security concerns

The Act also addresses the national security concerns that some in the US government have with data collected from commercial remote sensing satellites. For example, it provides that if the Office of Space Commerce determines, “with clear and convincing evidence” that the proposed operation poses a “significant” threat, it may condition the proposed operation “only to the extent necessary to address such threat”. It may only deny an application if there is no “practicable way to condition such permit to address such threat”. A “significant threat” is defined as imminent and one that cannot be practicably mitigated through changes in the federal government’s actions. Moreover, the Act requires the Office of Space Commerce to notify Congress as to why an application was denied or a condition was imposed – and why mitigation measures by the federal government are not practicable.

Currently, if a government agency has a national security concern with the proposed operation of a commercial remote sensing satellite, the applicant often has little insight into the specific concerns or how they might be addressed. The Act essentially shifts the burden of proof, and mitigation, of a perceived national security threat from the applicant to the government. Moreover, by requiring the Secretary to notify Congress of any imposed conditions, the Act gives industry an important ally.

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While the approval of the US House of Representatives Committee on Science, Space and Technology is an important step, there is a good deal that still must occur before the Act can become law.  The Act is a significant piece of legislation, and it is unclear as to whether Congress has the appetite to pass many significant major bills given the current political environment in DC. Moreover, the defense and intelligence agencies in the US undoubtedly will raise concerns about the potential impact of the Act. However, the Act is an important step in recognizing the need to update the legal and regulatory framework for the commercial remote sensing satellite industry that currently exists in the US under the Land Remote Sensing Policy Act of 1992.