John Goehring, National Geospatial-Intelligence Agency
Keywords: Space law, space policy, domestic regulation
Abstract:
U.S. Commercial Space Regulations: The Rule of Three
by John Goehring, National Geospatial-Intelligence Agency
ABSTRACT
The rule of three is the idea that an ideal commercial space regulatory environment is one that satisfies three policy objectives: Promote industry growth, satisfy international obligations, and preserve national security. The rule of three provides a framework both for understanding and designing commercial space regulatory environments and for assessing whether they are adequate and effective or, instead, deficient and unable to meet policy goals.
Part one provides a brief background on existing regulatory regimes comprising the broad commercial space regulatory environment. It explains what space activities are covered, with a focus on the activities of payloads on orbit. It discusses the role of the Federal Communications Commission (FCC) in the regulation of frequency use and the role of Commerce Departments National Oceanic and Atmospheric Agency (NOAA) in the regulation of private remote sensing. In addition, it identifies regulatory gaps and discusses a potential stop-gap regulatory measure known as the Mission Authorization framework for near-future or otherwise unregulated space activities.
Part two describes the components of the rule of three and their derivation. These three components are not novel. Rather, they are drawn from recent space policies and applicable international law, particularly Space Policy Directive 2, Streamlining Regulations on Commercial Use of Space, issued in 2018, and the National Space Policy, issued in 2020, as well as the Outer Space Treaty of 1967.
Part three applies the rule of three to two case studies: commercial remote sensing and commercial radiofrequency (RF) collection. It argues the commercial remote sensing regulatory environment is sound and effective because each of the three policy objectives are satisfied and appropriately balanced. The commercial RF regulatory environment, by contrast, has regulatory gaps. The gaps undermine the rule of three, thereby hindering the ability of the United States to achieve its stated policy goals. These case studies demonstrate how current and future commercial space regulatory environments can be evaluated by whether they reflect and adhere to the rule of three.
The conclusion offers three observations drawn from the case studies that can aid policy makers in the application of the rule of three.
John Goehring is an assistant general counsel for the National Geospatial-Intelligence Agency (NGA). He practices national security law with a specialty in space law. All opinions expressed herein are those of the author and not NGA, the Department of the Defense, or the U.S. government.
Date of Conference: September 27-20, 2022
Track: SSA/SDA