“Earth is the cradle of man, and man must leave his cradle to grow. The pollution of outer space threatens this evolution.”[1]
*Dallon Danforth
I. Introduction
Mankind’s reach extended beyond planet Earth for the first time on October 4, 1957, with the Soviet Union’s historic launch of the Sputnik 1 satellite.[2] Following the launch of Sputnik 1, humanity’s presence in outer space increased dramatically. Where only a single satellite occupied Earth’s orbit in 1957, over 6,500 satellites now occupy that same space today.[3] The road to this milestone was wrought with mistakes that inadvertently littered the Earth’s upper atmosphere with hazardous debris.[4] In the nearly seven decades following Sputnik 1’s launch, the United States never issued a financial penalty to a private company for the consequences of its failed operations in outer space.[5] That is, until October 2, 2023, when the Federal Communications Commission (FCC) established a new regulatory era in outer space by issuing the first-ever fine to a private company for its improper management of a proprietary satellite.[6] Unfortunately, the novel fine is likely insufficient to supplement the considerable gap in existing outer space regulations.
II. Background
Pursuant to 47 U.S.C. § 721,[7] the FCC fined Dish Network (Dish) $150,000 for its negligent operation of the EchoStar-7 satellite.[8] Dish incurred the penalty after failing to increase EchoStar-7’s elevation by an additional 178 kilometers above its final orbital altitude after the satellite prematurely depleted its remaining fuel reserves.[9] In an unofficial announcement, the FCC stated that EchoStar-7’s final position could pose concerns about orbital debris[10] which, in turn, may be “devastating” for mankind’s continued presence in outer space.[11]
III. Analysis
Given the gravity[12] of the consequences that may result from Dish’s admitted negligence, the question then becomes whether $150,000 is an appropriate penalty. If the purpose of a penalty is to discourage similar conduct, then the costs incurred should actually impose a financial detriment. As a preliminary metric, Dish generated $16.68 billion of revenue in 2022 alone, which translated to $2.30 billion of profit.[13] The FCC’s penalty accounts for approximately 0.00089% of Dish’s 2022 revenue and 0.0065% of profit for that same year.[14] In comparison, NASA estimates that the cost of removing orbital debris like that of EchoStar-7 can vary from $5.5 million to $20 million per single expedition, depending on the method of removal.[15] But even those expenses are negligible compared to the potential costs of a “space debris apocalypse” (also known as a “Kessler syndrome episode”) where Earth’s upper atmosphere becomes so crowded with misplaced, high velocity orbital debris that space-faring operations become infeasible for extended, if not indefinite, periods of time.[16] The financial ramifications of such an incident could be massive; mankind’s activities in outer space commanded a value of $469 billion in 2022, with the majority of that activity attributed to commercial companies like Dish.[17] Experts anticipate that humanity’s activities in outer space will be worth $1 trillion by 2040.[18] Space debris and negligent satellite operations like Dish’s EchoStar-7 failure jeopardize not only this projected financial growth, but the continued operation of the space-faring industry as a whole.[19] Under these considerations, a one-time penalty of $150,000 does not reflect the severity of Dish Network’s conduct.
Nevertheless, the first-of-its-kind penalty signals the beginning of a necessary change in the regulation of outer space. Humanity’s activities in outer space are currently subject to minimal regulation, and the few policies that do exist “do not address private sector activities” and are largely self-executing.[20] Given the “rapid rise of for-profit companies in space,” the FCC’s novel fine arrives at an opportune moment in space-based commerce.[21] For example, the for-profit company SpaceX owns and operates more than half of all active satellites in outer space—more than every government on planet Earth combined.[22] Despite SpaceX’s overwhelming dominance, the company’s presence in outer space remains largely unregulated, and the company has never been fined for its non-terrestrial operations.[23] To that end, Dr. Jonathan McDowell of the Harvard-Smithsonian Center for Astrophysics elaborated that “[t]he speed of commercial development is much faster than the speed of regulation change . . . There needs to be an overhaul of space traffic management and space regulation generally to cope with these massive commercial projects.”[24] Unfortunately, the FCC’s fine to Dish Network does not even approach the type of overhaul that Dr. McDowell urges.
IV. Conclusion
The private sector will only further increase humanity’s presence in outer space. In doing so, the United States must pass additional regulations to properly manage the accumulating amount of orbital debris. The FCC’s fine to Dish Network marks a necessary new era in the regulation of corporate activities occurring within outer space, but the value of the fine itself does not take the hardline stance necessary to control the rapidly growing industry.
*Dallon Danforth is a second-year student at the University of Baltimore School of Law and a Staff Editor for the University of Baltimore Law Review. He also serves as President of the Caroll Inn Chapter of the Phi Delta Phi International Legal Honor Society and is a law clerk at Greenberg Law. He would like to thank the Law Review staff for the opportunity to publish this piece.
[1] Orbital Space Debris, 1988: Hearing Before the Subcomm. on Space Sci. and Applications of the H. Comm. on Sci., Space, and Tech., 100th Cong., 2nd Sess. 112,at 82 (1988)(statement of Nicholas L. Johnson, Advisory Scientist, Teledyne Brown Engineering).
[2] The Launch of Sputnik, 1957, U.S. Dep’t of St. Archive, https://2001-2009.state.gov/r/pa/ho/time/lw/103729.htm (last visited Oct. 20, 2023).
[3] Id.; UCS Satellite Database, In-depth Details on the 6,718 Currently Orbiting Earth, Union of Concerned Scientists (Jan. 1, 2023), https://www.ucsusa.org/resources/satellite-database.
[4] See, e.g., Historical Log, Mars Exploration, NASA, https://mars.nasa.gov/mars-exploration/missions/historical-log/ (last visited Oct. 20, 2023); see also, Nikolai Khlystov, Space Debris is A Growing Problem. These Leaders Have A Plan to Tackle It, World Econ. F. (June 13, 2023), https://www.weforum.org/agenda/2023/06/orbital-debris-space-junk-removal (“[T]here are approximately 1 million pieces [of orbital debris] . . . travel[ling] several times faster than a bullet. A collision between the debris or with active satellites could be devastating, destroying entire missions or creating large new debris fields.”); see also Gunnar Leinberg, Orbital Space Debris, 4 J.L. & Tech. 93, 97 (1989) (explaining that pieces of orbital debris just 10cm or smaller are capable of causing “catastrophic damage.”).
[5] See Jennifer Hassan, Space Junk Crackdown Intensifies As FCC Gives First-Ever Fine to Dish, Wash. Post (Oct. 3, 2023, 8:50 AM), https://www.washingtonpost.com/technology/2023/10/03/space-junk-dish-network-fine-debris/.
[6] See id.
[7] See 47 U.S.C. § 721(c)(11) (2023) (authorizing the FCC to enforce the Communications Act of 1934).
[8] Press Release, Fed. Commc’ns Comm’n, FCC Takes First Space Debris Enforcement Action: Settles Investigation of DISH for Failing to Comply with Deorbiting Plan (Oct. 2, 2023), https://docs.fcc.gov/public/attachments/DOC-397412A1.pdf [hereinafter FCC Statement]. Apart from the $150,000 fine, Dish Network was also obligated admit liability for the mismanagement of EchoStar-7 and adhere to an FCC-imposed “compliance plan.” Id.
[9] Id.; see also Jackie Wattles, Space Debris Investigation Results in Fine and An ‘Admission of Liability’ by Satellite TV Company, CNN World (Oct. 2, 2023, 10:16 PM), https://www.cnn.com/2023/10/02/world/space-debris-fine-dish-fcc-scn/index.html (“Geostationary orbit is located well above low-Earth orbit, the area of space that is home to the ISS and thousands of small satellites including SpaceX’s Starlink network, as well as the most problematic space debris.”).
[10] FCC Statement, supra note 8.
[11] Khlystov, supra note 4.
[12] Or rather, the lack thereof.
[13] DISH Network Reports Fourth Quarter, Year-end 2022 Financial Results, Dish Network (Feb. 23, 2023), https://ir.dish.com/news-releases/news-release-details/dish-network-reports-fourth-quarter-year-end-2022-financial (official press release).
[14] See id.
[15] Andrew Petro & Howard Ashley, Cost Estimates for Removal of Orbital Debris, NASA Tech. Reps. Server (Jan. 1, 1989), https://ntrs.nasa.gov/citations/19900030959.
[16] For an introductory analysis of the current orbital debris situation, see Tereza Pultarova, 6 Types of Objects That Could Cause Space Debris Apocalypse, Space.com (Feb. 19, 2023), https://www.space.com/most-dangerous-types-space-junk (“The space around our planet is getting cluttered. Thousands of satellites and millions of out-of-control fragments of space debris hurtle high above our heads, threatening to collide.”). In early 2023, for example, two “huge pieces of space junk” almost caused the “worst case scenario” when each piece of orbital debris came within twenty feet of colliding. Id. Had the two pieces collided, the incident “could have spawned thousands of dangerous debris fragments that would have stayed in orbit for centuries.” Id.
[17] Space Foundation Editorial Team, Space Foundation Releases The Space Report 2022 Q2 Showing Growth of Global Space Economy, Space Found. (July 27, 2022), https://www.spacefoundation.org/2022/07/27/the-space-report-2022-q2/ (official press release).
[18] Michael Sheetz, The Space Industry Is on Its Way to Reach $1 Trillion in Revenue by 2040, Citi Says, CNBC (May 21, 2022, 7:00 AM), https://www.cnbc.com/2022/05/21/space-industry-is-on-its-way-to-1-trillion-in-revenue-by-2040-citi.html.
[19] See Pultarova, supra note 16 (“The sheer size of [some pieces of orbital debris] means that a collision would produce an enormous amount of space debris fragments that would . . . possibly [trigger] the Kessler syndrome, a dreaded scenario of unstoppable cascades of collisions such as the one depicted in the 2013 Oscar-winning movie ‘Gravity.’”).
[20] See Henry R. Hertzfeld et al., Outer Space: Ungoverned or Lacking Effective Governance? New Approaches to Managing Human Activities in Space, SAIS Rev. Int’l Aff., Summer-Fall 2016, at 15, 16, 23.
[21] Id. at 16.
[22] Lisa Grossman, Half of All Active Satellites Are Now from SpaceX. Here’s Why That May Be A Problem, Sci. News (Mar. 3, 2023, 9:00 AM), https://www.sciencenews.org/article/satellites-spacex-problem-space-pollution (noting that “[t]he number of satellites in low Earth orbit is increasing faster than regulations can keep up.”).
[23] See Hertzfeld et al., supra note 20, at 16.
[24] Id.
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