by Gabrielle Daley
There have been a lot of significant firsts in the history of space exploration: 1957—first artificial satellite, 1961—first man in orbit, 1969—first man on the moon. But now one company may have earned a first that is not so prestigious. On March 7, 2018, the FCC accused a Silicon Valley start-up company named Swarm Technologies (Swarm) of launching unauthorized satellites into orbit. If the allegations are correct, Swarm would be the first company to put unauthorized commercial satellites in orbit.
Space exploration and communications have been undergoing a revolution in technology over the past 20 years. New commercial players like SpaceX have taken aim at the stars and pioneered developments, like compact satellites, reusable launch vehicles, and small launch vehicles, that promise to make it easier to access space by lowering costs.
However, given the complex legal and regulatory environment of space, it’s not as simple as brewing up a batch of homemade rocket fuel and shooting for the moon. The Outer Space Treaty of 1967 placed responsibility for launched objects on their country of origin. Therefore, when U.S citizens or entities want to put something into orbit, they first have to ask permission from the United States authorities that govern space access. Those authorities are the Federal Aviation Administration (FAA) —for launch—and the Federal Communications Commission (FCC)—for communications technologies.
As innovators have persevered they have begun to critique the complex layers of regulatory permissions necessary to launch something into space and called for streamlining the process. In October of 2017, President Trump reconvened the National Space Council, and in February of 2018, the National Space Council approved several recommendations to modernize the licensing process for launches.
Swarm Technologies is a start-up company founded in 2015 by ex-Google engineer Sara Spangelo and Benjamin Longmier, an adjunct professor at the University of Michigan and entrepreneur who has helped build several space technology companies. In April of 2017 Swarm applied for an FCC license to launch four small satellites, about the size of hardback books, into orbit, apparently as a proof of concept of their proposed internet network that would provide connectivity for internet of things (IoT) devices. Swarm technologies contracted with Spaceflight Industries, which coordinates and manages space launch and ridesharing for payloads. Spaceflight found a place for the tiny satellites on a Polar Satellite Launch Vehicle, which launched 31 satellites into orbit on January 12, 2018. However, on December 12, 2017, the FCC’s experimental licensing branch denied Swarm’s application on the grounds that the satellites posed too great a risk to other spacecraft, because they were too tiny to accurately and reliably track.
If confirmed that Swarm’s technology launched without the proper regulatory clearance, this would be the first ever unauthorized launch of commercial satellites. While some disruptive start-ups have notoriously disregarded laws and regulations as part of their business models, these kind of actions have increasingly been critiqued. In the space sector, where national security is paramount, this strategy does not seem likely to be tolerated.
In the aftermath of the allegations of unauthorized launch of these satellites, the FCC has denied Swarm technologies permission for subsequent launches and operation of ground stations. But the exact long-term consequences of this incident both for Swarm Technologies and the space industry more broadly are uncertain.
The question remains, how did a launch take place with a payload that lacked regulatory clearance? Spaceflight’s official response to the story of the alleged unauthorized launch has been that “Spaceflight has never knowingly launched a customer who has been denied an FCC license. It is the responsibility of our customers to secure all FCC licenses.” However, it’s unclear the extent to which the launch provider was concerned with ensuring that all the satellites launched had obtained such clearances.
As policymakers study this incident and look to prevent such events from occurring in the future, parties are sure to ask what lessons we can take away from this new space ‘first’. Regulators may consider placing greater responsibility on launch providers to ensure that the proper authorities have approved the payload before launch. Entrepreneurs, on the other hand, may point to this launch as an example of the need for greater regulatory coordination to ensure clarity for businesses trying to be good corporate citizens.
While Swarm may become merely a cautionary tale for launch providers and startups alike, this episode may also be the catalyst for regulatory change.
Watch this space . . . .
*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.