Op-ed | The space renaissance and regulatory environment: moving beyond oversight

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Regulation, and regulators, often get a bad rap. As a practical matter, most of the space industry recognizes the role of regulatory oversight to protect national security. Industry also sees the need for balance in implementing regulatory authority, so as to not hinder U.S. success in global markets. In the context of the space renaissance, wherein new technology is driven first by markets and not national security, and where hundreds of millions of dollars of private capital is now being invested in this uniquely regulated industry, it is worth taking a moment to revisit what principles should guide the approach that government takes to regulate our industry. And, possibly, change the perception of regulation in the geospatial world.

Historically, the mechanisms used by the government to regulate commercial remote sensing have been restrictions on imagery spatial resolution, restrictions on who can receive imagery and the non-specific option of executing “shutter control” if needed. In the context of the space renaissance, about which we have written previously, we see the need for smarter regulations. We want the regulatory environment to have insight, oversight and foresight.

The Department of Commerce regulates the commercial remote sensing community and this responsibility is given to the National Oceanic and Atmospheric Administration for implementation. As an effect of the space renaissance, there has been a significant increase in the number of applications for new missions, new sensors and new mission architectures from new actors. According to a NOAA NESDIS web site, most recently updated in June 2015, NOAA had issued 46 licenses from 2010 to 2015, yet had only issued 20 licenses from 1996 to 2010. This is only one function of NOAA’s Office of Commercial Remote Sensing Regulatory Affairs. Other functions, like compliance reviews at satellite ground terminals, have seen a similar increase.

Even with this increase in its administrative burden, in 2014 NOAA led an interagency process to modify regulatory restrictions on the best allowable spatial resolution of remote sensing images, allowing commercial satellites operators to sell imagery at 25 centimeters per pixel. NOAA’s Advisory Committee for Commercial Remote Sensing (ACCRES) was a major advocate for this modification because the existing resolution limit was putting the international competitiveness of U.S. industry at risk.

Following this change, senior government officials realized that regulating our industry by chasing after improving resolution limits — effectively using regulations to restrict technology advancement — was ineffective, and that the time had come to eliminate what had been decades of uncertainty around what exactly was meant by shutter control. In late 2014, on behalf of the full interagency community, NOAA reached out to U.S. commercial remote sensing operators to discuss what shutter control, or “modified operations,” might mean. They asked questions about technical operations, space and ground segments, information technology security, and business models. It was, we thought, the start of a longer dialogue that would take shape over at least a couple of years.

That fall 2014 process was a solid first step toward government working in partnership with industry. The regulatory environment was taking a step toward evolving beyond only its licensing and oversight roles, and building a capacity for both insight and foresight. Insight, in that regulators had a more detailed and nuanced understanding of and appreciation for the capabilities, plans and market positions of the private sector. Foresight, in that regulators could use that insight to better consider, evaluate and model future environments; better understand the potential impacts of regulatory actions on the private sector; and ultimately learn how to continually adapt with industry.

To attain oversight, insight and foresight, collectively, should be the guiding principle of any regulatory environment influencing this nascent space renaissance. It maintains the tools government needs to protect national security in immediate, critical situations. But it further gives government the confidence it needs to know that national security is protected over the long term as well, by assuring the market that the U.S. remains the best place for investment and innovation.

As solid a start as that process was in 2014, there has yet to be significant follow-up, or a similarly solid second step to maintain progress. In fact, there has been some regression. Perhaps it is the administrative burden of the new applications and the understaffing of this important government function, but in the fall of 2015 commercial remote sensing operators received notification from NOAA that new restrictions on satellite imaging operations were being imposed. Unlike the consultative engagement the year before, these restrictions were received without any prior notification that they may come, without any consultation with industry on their potential impact, and they were proposed as permanent changes for all future operations.

The satellite operator community voiced major concerns over these new restrictions with NOAA, specifically about the non-consultative process by which they were determined. Then, after some hand-wringing, operators received letters stating that the restrictions were “held in abeyance.” They are, as of this writing, still under review. These are growing pains, which are to be expected when a technology landscape is changing and both governments and markets have to adapt. But the autumns of 2014 and 2015 stand in such stark contrast because they offer differing views of how the government sees its responsibilities, and suggests some uncertainty as to which path the government will take moving forward. One path suggests only oversight matters: that the government will dictate to industry, that industry must simply comply. And, to be clear, U.S. industry has always and will always comply, building on more than 20 years of working very closely with the U.S. government. The other approach suggests that insight, oversight and foresight built in partnership with industry will yield better outcomes for all parties.

The former is historic, understood and perhaps comfortable. But, the former is not usually replicated internationally, and will therefore create burdens not faced by international competition — competition that simply did not exist all that long ago. The latter will take time, will have uncertainties, and is uncomfortable for all parties. The latter also has the potential to set the U.S. apart as the premier regulator, setting a global example for all to follow and further attracting entrepreneurs and international companies to have their license held by smart regulations.

Actions in the fall of 2014 were potentially the beginning of the government adopting a new posture, and there are signs that things will continue to remain on this path. One such sign was the passage last year of the U.S. Commercial Space Launch Competitiveness Act, which brought attention to the commercial remote sensing regulatory process for the first time in years. Congress is poised to address commercial space opportunities again this year, with Congressman Jim Bridenstine’s announcement that he will introduce the American Space Renaissance Act, which will likely continue congressional engagement on this particular issue. Another sign is President Obama’s fiscal year 2017 budget request providing increases for two important offices in NOAA, the Office of Commercial Remote Sensing Regulatory Affairs and the Office of Space Commerce. These offices have long been underfunded, and the attention they’re receiving in this budget environment is encouraging. This signifies that the government sees the national security rationale for a robust, innovative strong commercial industry.

We strongly advocate that funding and functions aim toward that balance of insight, oversight and foresight. Our first essay called for the government to be an early-adopter customer to encourage the space renaissance, but it is not enough to create the next, new industry. We need a regulatory environment that is appropriately staffed and has the influence to advocate for new benefits that come with this strategic, changing landscape.

Disclaimer: Mr. Schingler is a member of ACCRES, established in 2002, which provides information, advice, and recommendations to the Under Secretary of Commerce for Oceans and Atmosphere on matters relating to the U.S. satellite commercial remote sensing industry and NOAA’s regulatory responsibilities in this area. The views expressed here comport with those views he has shared publicly as a member of ACCRES.

Robbie Schingler is Co-Founder of Planet Labs. Richard B. Leshner, PhD, is Director of Government Affairs at Planet Labs.