Did you know the Federal Communications Commission has jurisdiction over the orbits of communication satellites launched from the United States? Satellites are flying radio antennas, or in the words of space lawyer Payton Alexander: “If you’re putting anything in space–be it a communications satellite, a weather satellite, even a human being–you’re going to be communicating with it” (Alexander 2022). As a result, although the FCC was originally established by Congress in 1934 to regulate wire and radio communications (Coase 1959), today the FCC has become the primary space regulator of the U.S. commercial space industry (ibid.). With this background in mind, I just noticed this recent report published in the September 2024 issue of “Space News” and highlighting some recent developments regarding the FCC’s regulatory authority in outer space. [See Jason Rainbow, “FCC’s space sustainability authority in question as need grows”, Space News (September 16, 2024).] The following passages from Mr Rainbow’s report especially caught my attention (emphasis added):

Pressure is mounting on the Federal Communications Commission to do more to protect the environment from rising [satellite] megaconstellations …. The U.S. Public Interest Research Group (PIRG) Education Fund, a research and advocacy nonprofit, launched a public petition in early August to pause low-Earth orbit (LEO) satellite internet launches until the FCC reviews their environmental impact. **** Specifically, [PIRG’s] petition calls for satellite plans to require reviews under the National Environmental Policy Act (NEPA), a 1969 law mandating federal agencies assess the environmental impacts of their actions.

The petition comes two years after a U.S. appeals court shot down Viasat’s attempt to force an environmental review on the expansion plans of broadband rival SpaceX, which now has more than 6,300 satellites in LEO and counting.

These passages pose two further questions for me–one “legal”; the other “policy”. The legal question, for example, is: Does the FCC have the legal authority to require rocket companies like SpaceX, Boeing, and ULA to submit environmental impact statements before they can launch spacecraft into outer space? But it is the policy question that I am more interested: Should regulatory agencies like FCC or the FAA impose additional costly and time-consuming regulatory requirements (such as NEPA) on the commercial space industry? More to the point, why not create a competitive market for access to outer space instead?

This policy question is part of the larger “regulation versus markets” debate that Ronald Coase, George Stigler, Richard Posner, and many others have contributed to. In any case, as it happens my colleague and friend Justin Evans and I are researching and writing a new paper addressing both of these questions, and we will report back soon …