Sustainable use of Outer Space

Conference presentation, 30 May 2024

Thank you for that kind introduction.

The title of this conference is:? "To Orbit and Beyond: Challenges and Outlook for Space Law and Policy”. The theme of this particular panel session is “Sustainable use of outer space: the regulatory road ahead”.

I have agreed to speak first and provide some background.? My presentation is necessarily general without drilling into the legal and policy detail.? ?I will hand to the other panelists to talk to the specifics from their respective points of view.

I will address three key questions in my brief 10-minute presentation:

• What are the current trends and forecasts in space activity and what does this mean for Australia?
• Given this, what are the current issues with sustainable use of outer space and how is this relevant to Australia??? I’ll use space debris as an example.
• Last, given I’m also a telecommunications law specialist, what issues are we seeing in the use of radiofrequency spectrum?

But first a quick plug for the Australian space industry.? Australia possesses the geography, innovative thinking and skills base necessary to help grow the domestic space sector. ?Recent successes illustrate how the space sector in Australia continues to punch above its weight.

Notwithstanding the continued challenges posed by competing Government priorities and economic pressures, there remains huge further opportunity.?? However, sustainability is now a very real issue and concern.

1.??? My first question, what are the current trends and forecasts in space activity?

Outer space is projected to be a trillion-dollar industry by 2030, with nearly 80 percent of the money generated by the space industry coming from the private, or commercial sector.?? The ongoing expansion of the space industry will continue to be underpinned by dynamic technological advances, including development of reusable launch rockets, and nano and mega-constellation satellites.??

Bearing these issues in mind, we are already seeing a surge in launches and satellites in orbit. ?Over the 40 years from 1960 to 2000 the world had launched around 5,400 objects into space and by 2000 had around 770 satellites in orbit.? Over the 10 years to 2010 that had increased by around 25%.?? However, by mid 2024 we have had around 17,500 objects launched to date with current satellites in orbit sitting at just over 7,500.

One of the reasons for the dramatic surge in launches and satellites are changes to the economics of the space industry.? In 2023, McKinsey indicated that the price of heavy launches to low-Earth orbit has fallen from AUD 100,000 per kilogram to AUD 2,500 per kilogram—more than a 95 percent decrease.? ?

Elon Musk’s SpaceX and Starlink have been arguably leading the way, with Starlink currently sitting at around 6,000 Starlink satellites in orbit with plans for substantially more.? ?Amazon’s Project Kuiper constellation will ultimately comprise some 3,300 satellites.

On conservative estimates that ignore some of the wild hype (of which there has been plenty in this industry in recent years) we could have some 25,000 satellites in orbit by 2030, at least a tripling in the number of satellites in orbit today.

This has major benefits for Australia. Low Earth Orbit or LEO satellites promise low-cost communication and connectivity to remote and financially disadvantaged communities.? Australia’s vast geography and very low population density mean that Australia faces inherent difficulties in delivering telecommunications coverage in sparsely populated regional areas, given the poor economics of servicing these areas.? LEO satellites are unequivocally now part of the solution in regional Australia.

So, more satellites provide clear social benefits, but we do then face the issue of sustainability.

2.???So my next question, what are the current issues with sustainable use of outer space?

While outer space is arguably an infinite resource, the practical, technical and economic constraints currently render key aspects of it to be unequivocally finite.? There are also critical bottlenecks, including limited orbital slots around our planet.?? As such, there is also a real risk of Garret Hardin’s so-called “tragedy of the commons’, leading to over-consumption of a finite resource given the costs are borne as an externality by society as a whole, not by the individual.

I will use space junk as an example.?

By way of background, of the satellites currently in orbit some 60% of them are now defunct, hence effectively space junk.? There has been a real concern recently that new satellites being launched may be of inferior quality hence more likely to become defunct, hence exacerbating the problem.

However, the space junk problem is not just one of defunct satellites, but also other pieces of space debris.? The speed to achieve geostationary orbit is around 28,000 km/h so another satellite being hit with any space debris larger than 10 centimetres at that speed is potentially catastrophic.? Space debris can potentially remain in orbit for hundreds, even thousands, of years.

Today, there are an estimated 40,000 pieces of space junk greater than 10cm, and an estimated 150 million pieces of debris smaller than 1mm. ?Space junk is already increasing mission costs by around 10% due to losses and the need to armour satellites and rockets against smaller debris.

Also, space junk begets more space junk due to debris clouds created by collisions between space junk under the Kessler effect.? There is a real risk that cascading collisions could ultimately render some orbits unusable if the issue is not managed in a sustainable way.

So, what are we doing about it?

• Space junk has been the subject of litigation in the United States. In 2020, ViaSat challenged one of the key approvals Starlink had received from the Federal Communications Commission (FCC). ViaSat requested the FCC conduct an environmental review of Starlink’s broadband LEOsat constellation, arguing that the satellite system poses environmental hazards in space and on Earth.?? This subsequently resulted in litigation to the US Federal Appeals Court in 2021 and a subsequent appeal. Ultimately, the US Court of Appeals rejected ViaSat’s challenge, but ViaSat's actions were influential in highlighting the important issue of sustainability to the FCC.
• The FCC currently has rules requiring post-mission disposal of low-Earth orbit satellites within five years. This helps prevent defunct satellites from becoming additional space junk.
• As well as domestic regulatory endeavours around the world, of which the United States is probably the most important jurisdiction to date, there are international approaches.?? The Inter-Agency Space Debris Coordination Committee (IADC) has established comprehensive guidelines for space debris mitigation. These recommendations cover launching states, satellite owners, and operators.?? These guidelines are increasingly recognized by states through codes of conduct, national legislation, recommendations from international organizations, and state practice.

Debris monitoring is expressly identified in the Australian Government’s Civil Space Strategy 2019-2028 as one of a number of national civil space priority areas. ?The inclusion of debris monitoring in the list of priority areas is justified as “collisions in space with debris pose a risk to assets and life” and that “Australia’s geographical position makes it an ideal location for space debris tracking and space traffic management activities.”

3. As a final point, what issues are we seeing in the use of radiofrequency spectrum?

Another finite resource encountered by the space industry is radiofrequency spectrum.? Essentially, radiofrequency interference between different devices means that the use of spectrum must be carefully co-ordinated and managed.? Australia does this pursuant to the Radiocommunications Act 1992 with responsibility for management allocated to the Australian Communications and Media Authority (ACMA).

The regulatory framework involves ACMA setting an overall spectrum plan and frequency band plans that are aligned with international standards set by the United Nations International Telecommunications Union (ITU).? Licences are then allocated pursuant to the band plans in the form of spectrum licences, apparatus licences and class licences.? Various statutory rules then apply to allow resolution of interference disputes.

A perennial issue facing ACMA, and the space industry is one of competing uses for the finite spectrum bands.? For example, should a particular frequency band be allocated for use by satellite operators, or for use my mobile network operators??? Generally, such issues tend to be resolved globally so that Australia adopts the global standards rather than itself making such policy trade-offs – but they do still arise.

Access to spectrum is a key input for Australian satellite operators and we anticipate there will continue to be debates over the allocation of this scarce resource into future, particularly as new technologies develop requiring access to spectrum to deliver services. ?

By way of current example, satellite providers in Australia have openly warned about the potential encroachment of telecoms mobile network services into legacy C-band spectrum.? Standard C-band downlink frequencies (3.7-4.2 GHz) are globally identified and used today to deliver a wide range of critical satellite services. C-band signals penetrate through many kilometres of precipitation with far less loss than higher frequency signals, while supporting higher data rates. C-band also offers wide area regional satellite coverage.

This combination of high availability, high capacity and wide coverage makes C-band satellite delivery highly desirable.

The Australian Communications and Media Authority in early 2021 announced that it would proceed with its previously stated preference for making spectrum in the 3.7 to 4.2GHz band available for wide area wireless broadband, following a consultation with stakeholders.

Since that time, the ACMA has allocated spectrum in remote areas of Australia through area wide licenses or AWLs. The ACMA’s current focus is allocations of this band in metropolitan and regional areas, particularly closer to 4GHz. The ACMA intends to make interim mitigations on new wireless broadband deployments above 3.7 GHz until 2026. This process has included progressively clearing out fixed satellite and point-to-point services from the 3.7 to 3.8GHz range in metropolitan and regional areas, freeing up some 100MHz of spectrum for use by telecoms mobile network operators for 5G mobile services. ?For satellite services, the ACMA held a satellite direct-to-mobile spectrum 'tune-up’ event in late 2023, which some in the room may have attended. ??

The upshot is that there is already a framework in place globally and in Australia for the sustainable use of radiofrequency spectrum, but it may involve policy decisions that are not necessarily in the best interests of the space sector.? This does mean that policy advocacy at both the global and local levels is an important part of space activity going forward. This also means there is an important role for lawyers in assisting with such activity - and I'm happy to put up my hand!

I hope you found this brief overview helpful.? I will now hand to the next member of this panel to start working through some of the detail.