Move fast and break things, the Silicon Valley ethos, arguably has its merits. But there are downsides to taking it literally—particularly with things in the sky traveling 17,000 miles per hour.
As first reported in March by Mark Harris in IEEE Spectrum, in January a Silicon Valley–based commercial space startup named Swarm Technologies launched four experimental satellites into orbit aboard an Indian Polar Satellite Launch Vehicle rocket. SpaceBEEs —as in basic electronic elements—1, 2, 3, and 4 are billed as the world’s smallest communications satellites, about one-quarter the size of a standard 10-cubic-centimeter “CubeSat”—which is already considered a nanosatellite. (Technically, the SpaceBEEs are picosatellites.) The SpaceBEEs are one step on the way to Swarm’s goal of creating a satellite constellation one-four-hundredth the cost of existing communication satellites. Swarm hopes that its satellites, coupled with solar-powered ground stations, can provide wireless connectivity in remote locations, the sort of cheap, ubiquitous connectivity necessary for an “internet of things.” That ambition has earned the company a grant from the National Science Foundation. There’s just one problem: It appears Swarm launched the SpaceBEEs without an experimental authorization from the Federal Communications Commission, something that should have been acquired before launching.
Swarm did ask for permission, but when the FCC turned it down, instead of working with regulators to alter its spacecraft design and earn approval, it went ahead and launched anyway. That’s a decision that may have unsavory consequences. Certainly for Swarm, which the FCC can sanction for not following the rules, and other small satellite companies that may find getting FCC licensing more difficult. But Swarm’s activities may have also made the U.S. noncompliant with its international treaty obligations. May have, space-law experts say, because no one thought the rules would be flaunted in this way.
“By continuing their activities without a license, they have implicated U.S. responsibility in a way that is really the first of its kind,” Christopher Johnson, a space-law adviser at the Secure World Foundation and adjunct professor of law at the Georgetown University Law Center, says of Swarm. “Really kind of unforeseen.”
U.S. companies that wish to put satellites in space need some form of authorization, either from the Federal Aviation Administration in the form of a launch license—not applicable in the case of Swarm, because it launched from India—or a radio-spectrum license from the FCC in order to use radio frequencies to communicate with their spacecraft. Technically, the FCC is only authorizing the use of radio frequencies and not the launch itself, but Ian Christensen, director of private sector programs and Johnson’s colleague at the Secure World Foundation, says Swarm’s defiance of the FCC certainly implies an intent to turn its satellites’ radios on. “If you’re not licensed to operate in that spectrum, and therefore your satellites are essentially nonfunctional, why would you launch them?” And even if the radios haven’t actually been turned on (Swarm has not responded to Slate’s request for comment), it’s still a bad situation.
Conduct in space is governed by the legal framework set up by the 1967 Outer Space Treaty, which makes nations uniquely responsible for the actions of their nationals in space, whether public entities or private citizens. “Under international law, it doesn’t matter if the space activities are conducted by the government—whether it’s NASA or the Department of Defense—or whether it’s a startup company with only a few people working out of a garage. Under international law, the responsibility is the same,” Johnson says. “The U.S. is internationally responsible for these activities and potentially liable for any damage resulting.”
That’s different than others areas of international law, Johnson points out. Usually, there are complex rules to decide when a state is responsible for the actions of one of its companies. But under Article VI of the Outer Space Treaty, a country is always on the hook for the actions of its nationals, and it is tasked with providing “authorization and continuing supervision.”
The U.S. is also party to the International Telecommunications Union Constitution and Convention, which Johnson says requires nations to coordinate the use of radio frequencies to avoid interference, the regulation of which is the specific domain of the FCC. The FCC’s rules and regulations “are intended to ensure the U.S. is acting congruently with international law and commitment,” says Michael Listner, a space lawyer and founder of Space Law & Policy Solutions. “When a private actor under the jurisdiction flaunts those regulations, it potentially puts the U.S. in noncompliance.”
Swarm may not have pushed the U.S. into noncompliance by merely launching its satellites, according to Christensen, but it is certainly on the verge. “Technically they have not done anything illegal,” he says. Nevertheless, “I think it’s very fair to say they’ve done something wrong.”
After all, the reason for the FCC’s denial was a safety concern, as the agency wrote in a Dec. 12 letter to Swarm co-founder Sara Spangelo. The FCC was concerned the tiny SpaceBEEs would be impossible to track with ground-based radar and could easily become hazardous space debris, Listner says. “These things are flying around at 17,000 miles per hour, approximately,” he says. “The kinetic energy if they encounter another object is catastrophic.”
To be fair to Swarm, the FCC’s concern may be technically unwarranted. U.S. Strategic Command’s Joint Force Space Component Command is currently tracking the SpaceBEEs, according to command spokesman Maj. Cody Chiles, and they are now just some of the “tens of thousands of objects in Earth orbit” he says the command tracks routinely.
It’s also possible that Swarm applied for and received a radio-frequency-operating license from a different nation, which is both legal and a common practice for U.S. companies, according to Johnson. However, companies don’t usually do so if the FCC has already denied permission.
Swarm has made no public comment about a possible foreign operating license. But even if it has one, it wouldn’t let the U.S. off the hook should the SpaceBEEs damage another nation’s satellite, Johnson says. The aggrieved party could just sue in both the U.S. and the nation that issued the license.
Because the SpaceBEEs are in orbit and may technically be safe, Swarm could just run the radio-transmission portion of its experiment anyway, uploading data to the SpaceBEEs from ground stations and then transmitting back down as a proof of concept. But that would place the U.S. in noncompliance with the International Telecommunications Union and Swarm even deeper on the FCC naughty list, as Listner, who is also a ham radio operator, points out. If the FCC doesn’t take kindly to terrestrial pirate radio, it is even less likely to respond favorably to space pirate radio. It sets a bad precedent.
“It doesn’t help the U.S. cause in other things we want to do in outer space if we let our companies do whatever they want,” Johnson adds. “Here the categorical imperative applies—would you want everyone else to do what you just did, or would that be bad?”
The FCC did not comment in detail for this story, with spokesperson Neil Derek Grace saying only that “Commission staff continue to determine the facts surrounding the incident and the steps to ensure it doesn’t happen again.” So far, the FCC’s response has been to revoke its previous authorization for Swarm to conduct follow-up missions using larger, standard-size CubeSats, pending FCC review of Swarm’s “qualifications to be a Commission licensee.” That is, the FCC could decide to refuse Swarm any operating licenses in the future.
“That’s the death penalty for a licensee,” says Jim Dunstan, a space and telecommunications lawyer and fellow at TechFreedom. “Their whole business plan now just goes down the drain.”
Dunstan suspects that Swarm will go to the FCC, hat in hand, and ask forgiveness, perhaps citing the inherent clash of cultures between a Silicon Valley startup and a traditional space regulator for the mistake. It could also point out to the FCC that its rules on small satellites are confusing, Dunstan says. The regulations specify there must be a plan to mitigate orbital debris but don’t list specific size restrictions. “The only thing people hate more than regulations are vague regulations, because you never know when you’re right or when you’re wrong,” he says.
According to Dunstan, this could in fact be a learning moment for all parties involved. He notes that a lot of U.S. space regulations are stuck in the 1980s. The $500,000 FCC application fees are in line with the fact that traditional communication satellites are large, $100 million assets, not (relatively) cheap CubeSats. There’s also the 25-year rule, a guideline that says satellites should naturally and safely re-enter the earth’s atmosphere within 25 years of completing their mission. That’s based on the assumption of a launch or two a year. There were 126 satellites launched in in 2016, according to a Satellite Industries Association report, including 55 CubeSats. That’s a number that is only going to skyrocket. “If we’re launching one a year, fine, we can wait 25 years for it to come down,” Dunstan says. “If we’re launching 1,000 things a year, we can’t add 25,000 new pieces of junk up there and wait for 25 years for the oldest 1,000 to come back down.”
And satellites will only grow smaller and more numerous as the commercial space industry heats up. We need a plan for dealing with SpaceBEE-size satellites, Dunstan says—perhaps requiring satellites include a special beacon, or painting them in bright colors so they can be tracked optically. Johnson says there are proposals for special “sandbox” orbits exclusively for testing these experimental small satellites.
“I know the FCC is interested in doing some of this stuff, but … it takes time and it takes industry pushing them,” Dunstan says. “This case might be the first case that pushes the FCC to say, ‘OK, we can’t wait any longer.’ ”
In a March 26 blog post about the FCC’s April agenda, in fact, FCC Chairman Ajit Pai proposed a new alternative, streamlined process for the approval of small, commercial satellites, though Grace says there was no connection with the Swarm case. “This process would be less burdensome in some respects, while still addressing important issues such as using spectrum efficiently and limiting orbital debris (if you saw Gravity, you know what I’m talking about),” Pai wrote.
That could be good news for the small-satellite industry, though not necessarily for Swarm, poised as they are to test another Silicon Valley maxim, that it’s better to beg forgiveness than ask permission.
Then again, Listner says, Swarm may have just made things harder for everyone. “Now the FCC is going to be more suspicious,” he says. “The FCC isn’t going to forget this.”
