Space Tourism Puts Focus Back on Commercialization of the Outer Limits

Technology Policy Brief # 59 | By: Henry Lenard | August 3, 2021

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Policy Summary

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The successful space tourism flights of Richard Branson aboard his Virgin Galactic craft and Jeff Bezos on his Blue Origin rocket have drawn new attention to what is happening in the skies above us. It also has many asking the question who has oversight of commercial ventures in space.

Since the earliest days of spaceflight, U.S. companies have been involved as contractors to government agencies. Outer space was soon found to be a place with abundant opportunities for commercialization. Telecommunications services proved to be the first successful space commercial application, to be followed by remote sensing and global navigation services. In the last decade, the rapid development of space technologies has brought space tourism and space mining to the forefront of space commercialization.

How the federal government makes use of commercial space capabilities continues to evolve. NASA used to own and operate the space shuttles that contractors built. That changed in 2012 when Elon Musk’s SpaceX became the first private aerospace and manufacturing company to ship cargo to the International Space Station (ISS). In 2019, NASA announced a new directive that further opens the ISS for commercial use.

Congressional and public interest in space is also becoming more focused on commercial activities, but who has jurisdiction over outer space?

Soon after the dawn of the space race, with the launch of the first satellites in 1957, the United Nations took the lead in formulating rules governing space activities. Over time, The UN passed five international conventions, including the 1967 Outer Space Treaty, the 1968 Rescue Agreement, the 1972 Liability Convention, the 1975 Registration Convention and the 1979 Moon Agreement.

These five conventions within the framework of the UN constitute the nucleus of space law and guided the development of space activities for several decades. At that time, however, space was monopolized by the United States and the Soviet Union, and the UN failed to consider future commercial applications of space.

Today, oversight is provided by the UN Committee on the Peaceful Uses of Outer Space and its Scientific, Technical and Legal Subcommittees, which operate based on consensus.

Photo taken from: Luxembourg Space Agency

By far, communications satellites make up the lion’s share of space commerce. The Union of Concerned Scientists has assembled a satellite database that lists more than 4,084 operational satellites currently in orbit around Earth. Of those, 2,505 are American; Chinese, 431; Russian, 168; and other countries, 980. Of the U.S. satellites, 2,091 are for commercial use; military, 216; government, 166; and civil, 32.

Realizing the challenges in adopting legally binding international rules, the UN encourages countries to enact their own national space legislation guiding domestic space commercial activities.

Now, commercialization has resulted in competition from other developed regions and countries, primarily Europe and Japan. Realizing the challenges in adopting legally binding international rules, the UN encourages countries to enact their own national space legislation guiding domestic space commercial activities.

In the foreseeable future, it is expected that the development of soft laws and national space legislation will be the mainstream regulatory activities in the space field, especially for commercial space activities.

In the U.S., multiple federal agencies regulate the commercial space industry, based on statutory authorities that were enacted separately and have evolved over time.

During the Trump Administration, several of these agencies made significant changes in their regulations affecting commercial space. For example, one change had the Department of Transportation streamline the process for licensing approval for space launches and re-entries. Another designated the Department of Commerce as a hub for space commerce.

The 117th Congress may examine the implementation of these regulatory changes and consider whether additional legislation is required.

In the U.S. Senate, the Subcommittee on Space and Science has jurisdiction over national and civil space policy. In the U.S. House of Representatives, it falls to the Committee on Science, Space and Technology.

Policy Analysis

The commercialization of space is more than flights to zero gravity for wealthy tourists. It is about transitioning the space industry from one supported by the federal government to one funded by private industry.

NASA’s 2019 directive on the ISS opens it to U.S. industry for commercial ventures in low-Earth orbit. NASA says providing expanded opportunities at ISS to manufacture, market and promote commercial products will help catalyze and expand space exploration markets for many businesses.

More than 50 companies already are conducting commercial research and development on the space station via the ISS U.S. National Laboratory. In addition, NASA has worked with 10 different companies to install more than 14 commercial facilities on the station that support research and development projects for NASA and the ISS National Lab.

Photo taken from: Space.com

This effort is intended to broaden the scope of commercial activity on the space station beyond the ISS National Lab mandate, which is limited to research and development. The NASA directive enabled commercial manufacturing and production and allowed both NASA and private astronauts to conduct new commercial activities aboard the orbiting laboratory.

NASA’s ultimate goal in low-Earth orbit is to partner with industry to achieve a strong ecosystem in which it is one of many customers purchasing services and capabilities at lower cost.

Photo taken from: GianAngelo Pistoia

Beyond NASA, responsibility for space is spread across several agencies. The Federal Aviation Administration licenses commercial launch and reentry vehicles as well as commercial spaceports. The National Oceanic and Atmospheric Administration licenses commercial Earth remote sensing satellites. The Federal Communications Commission licenses commercial satellite communications. The Departments of Commerce and State license exports of space technology.

Related ongoing efforts, such as the proposed reorganization of space offices in the Commerce Department and the shift from the Department of Defense to civil responsibility for space situational awareness are also likely to attract congressional attention.

Agencies are considering a host of new opportunities, including acquisition of weather data from commercial satellites, acquisition of science data from commercial lunar landers, and expanded commercial utilization of the ISS for technology development and demonstration as well as other purposes. The 117th Congress may address these developments primarily through oversight of agency programs and decisions on agency budgets.

Among the agencies of which the Senate Subcommittee on Space and Science, and the House Committee on Science, Space and Technology, have oversight are NASA, the FAA Office of Commercial Space Transportation, the Department of Commerce Office of Space Commerce, and the National Space Council.