So the FCC denies you permission to launch a small fleet of satellites. Do you:

1. Accept it and give up, OR
2. Appeal the decision, OR
3. Con the space agency of a different country into launching your hardware anyway

An aerospace startup called Swarm Technologies may be in deep trouble after choosing the third option. The FCC had turned down Swarm Technologies’ application to launch the first four small satellites in the SpaceBee constellation, citing safety reasons.

So the company went to the Indian space agency, ISRO, to find a rocket that had room for its satellites. The SpaceBees wound up hitching a ride on a rocket that was scheduled to launch payloads for the asteroid mining startup Planetary Resources and a British Earth-observation mission called Carbonite.

The SpaceBees are meant to be a proof-of-concept for a space-based Internet of Things communications network. In the wake of Swarm Technologies’ unauthorized action, the FCC has revoked permission to launch four more SpaceBee satellites.

Why Did The FCC Reject SpaceBee?

According to the Space Treaty of 1967, governments are responsible for the space-activities conducted by its agencies and private parties based in their territory. This includes being liable for any damage caused by satellites owned by the government in question. The FCC reasoned that the constellation would increase the risk of accidental collisions with satellites owned by other organizations and governments. While there are efforts to develop methods to safely de-orbit “space junk”, including defunct satellites, none of them have seen widespread use yet.

(Yes, there is a Moon Treaty, but it has not been ratified by the United States, the Russian Federation, or the People’s Republic of China. Therefore, while the U.S. is bound by the terms of the Space Treaty of 1967, the Moon Treaty could be safely ignored by U.S.-based private organizations.)

Was Swarm Technologies Right, Though?

It may be reasonable to assume that the United States government could simply pay for any damage caused and then collect from the private party that owned the satellite in cases like this. However, the Space Treaty was negotiated at a time when all space-related activities were sponsored by governments and not private parties. There have been calls to update the Space Treaty of 1967 because it is outdated and does not allow for activities conducted by private companies.

How much authority can a government regulatory agency exert when private companies could simply do what SpaceBee did and attempt to trick a foreign space agency into launching their hardware? This may be something that keeps regulators awake at night when they know that the most they may be able to do is revoke authorization or throw the operators in jail if they persist. It wouldn’t take a big stretch of the imagination to assume that a private citizen that wouldn’t hesitate to trick ISRO into launching unauthorized hardware would also have few qualms about “disappearing” to another country if pushed into it.

This, of course, does not necessarily mean that private parties shouldn’t be held liable if their actions lead to damage to another party’s assets. While it might sound more efficient for the government to pay up and then collect from the actual owner as appropriate when the owner is “at fault” for an accident, a certain amount of freedom should flow out of the idea that the owner is ultimately liable for any damage caused by his, her, or its own assets. Swarm Technologies should be able to launch the full SpaceBee constellation on the understanding that it is responsible for any carelessness that leads to damage to other parties’ space assets.

The FCC could conceivably mediate if one organization fails to take reasonable safety measures and damages another organization’s assets as a result, but shouldn’t fall into the common regulators’ fallacy that projects within its jurisdiction should be judged purely by their organizers’ ability to dot their I’s and cross their T’s when filling out the regulatory paperwork. The International Space Station has occasionally had to use costly fuel to dodge debris, for instance. When this happens, it will not help astronauts and controllers to know that the debris’ “owner” properly filled out the paperwork before launching it. They’re just thinking about getting a multi-billion-dollar space station out of the way.

By the same token, regulators should worry less about the paperwork and start seriously thinking about asking Congress to support the cleanup of existing space debris and encourage use of systems like the D-Sat, which can perform a controlled deorbit of satellites that have outlived their useful operating period. Dealing with the situation may mean revisiting the Space Treaty of 1967 first, but it should be done with an eye toward making sure that private organizations like Swarm Technologies don’t feel the need to do a potentially careless and liability-inducing end run around regulators. If liability needs to be an issue, it should naturally be shifted into the lap of the organizations that actually send hardware into space (or, granted, pay someone else to do it for them). That will give private organizations more freedom to operate while making sure that they acknowledge the responsibility that comes with that freedom.