Home >> December 2023 Edition >> The Blake Brief: Overlapping Orbits
The Blake Brief: Overlapping Orbits
Curt Blake, Senior Columnist, and Peter Bratton, both of Wilson Sonsini Goodrich & Rosati


Government and private cooperation in addressing the space debris challenge.

October 3, 2023, marked a first in the history of U.S. Government (USG) / private industry space relations — the Federal Communications Commission (FCC) handed Dish Network a $150,000 fine for failure to successfully move a retired 2002 satellite to a so-called “graveyard” orbit1. DISH had promised the FCC that EchoStar-7 would navigate another 300 kilometers higher upon retirement; however, when that time arrived, the satellite exhausted its fuel about 122 kilometers shy of the promised mark2.

Despite this relatively nominal fine, the penalty generated headlines such as “US issues first ever fine for space junk,”3 and space debris suddenly became front-page news in a way not seen since Sandra Bullock’s “Gravity” depicted the decimation of the International Space Station to the tune of seven Oscars.

This column calls for a timely examination of state and commercial contributions toward the goal of keeping space “clean,” examining overlapping roles in the joint effort to make space commerce sustainable during the three stages of a spacecraft’s mission: launch, while on-orbit, and post-mission completion.

Launch: Government As An Orbital Debris Inhibitor

Of course, space junk typically does not start as junk. With launch costs being what they are, satellite operators and their investors are incentivized to minimize any wasted mass. Therefore, orbital debris usually originates from satellites (or launch vehicle stages) that reach the end of their mission life without enough fuel to get them to a “low” altitude where they eventually burn up, or a “high” altitude where they are unlikely to collide with anything.

Arguably, the best way to avoid the creation of orbital debris is to implement strict safeguards on the front end, a role that has been traditionally filled by government actors (though with increasing difficulty and decreasing effectiveness when the area to be protected belongs to no single country – see further the atmosphere and oceans). In the U.S., the Federal Aviation Administration (FAA) and Federal Communications Commission (FCC) control launch and satellite communication licenses, respectively, with orbital debris standards being within the purview of the FCC.

The need for control over the generation of orbital debris has never been greater — there are thousands of satellites (both “dead” and “alive”) already on-orbit, and the Satellite Industry Association estimates that number could grow to 100,000 by 2030.4

Washington has been responsive to industry calls for the 21st century regulatory updates needed to address orbital debris, with the new Streamlined Launch and Reentry Licensing Requirements taking effect in March of 2021.5 The overhauled standards came after a comprehensive review process, which included 150 comments and 100 clarification questions submitted on the notice of proposed rulemaking.6 Incremental regulatory updates have been made with even greater frequency — notably, in September of 2022, the FCC adopted a supplemental order requiring spacecraft “that end their lives in orbits at altitudes of 2,000 kilometers or below to deorbit as soon as practicable and no more than five years after the end of their mission,” down from the prior 25 year requirement.7

Other innovative proposals have not yet been accepted. An ongoing issue that has plagued orbital debris discussions is who will pay for debris removal. In the draft “Mitigating Orbital Debris in the New Space Age,” the FCC suggested that future licenses could depend, in part, on satellite operators posting a performance bond as security against the risk of failed deorbit.8

The concept seems simple enough and fundamentally fair: in the event that satellites in question are successfully and timely deorbited, the operators are refunded their money. In the event something goes wrong, the proceeds are forfeited and potentially redirected to finance remedial action (more on that later in this column). 

Still, some industry leaders have spoken out against the proposal.9 In the opinion of the Aerospace Industries Association (AIA), “the formula for the bond requirement disincentivizes operators from using more durable, longer- lived commercial systems or financing innovations in on-orbit debris mitigation, mission extension, and disposal services. It instead incentivizes operators to use shorter-lived spacecraft, resulting in additional replacements, more launches, and even greater orbital debris risk.”10 But the argument that bond requirements would create a disproportionate bias against durable, longer-lived satellites and satellite servicing is questionable.

There are already plenty of reasons why satellites are replaced quickly: space tech advances at a rapid pace and there is always a natural efficiency cost to using another outdated technology (just like using a ten-year-old laptop or a ten-year-old flip phone). If satellite proliferation is here to stay, we might as well incentivize safe operation, life extension and removal. Fines may offer limited deterrence, but what happens when a satellite operator goes bankrupt and cannot pay the fine (or, more concerning, cannot cover damages caused by negligent operation)? Better to require a performance bond up front to cover the cost of any necessary cleanup.

Of course, the bond solution is not without its drawbacks. If the U.S. is the only country requiring performance bonds, the domestic launch market could suffer from “venue shopping,” losing satellite customers to nations that do not require such bonds. Still, the U.S.’s current dominance in the launch and satellite markets (not to mention our governments insatiable appetite for satellite data) places the U.S. in an excellent position to introduce performance bond requirements (especially if the would-be venue-shopper intends to retain Washington as a paying data customer).

The suggestions do not stop with bonds — stakeholders have also discussed satellite servicing/third party docking capabilities, refueling, data sharing, and satellite maneuverability, just to name a handful of creative proposals. On maneuverability, the FCC stated that “although we do not adopt rules relating to maneuverability at this time, given the risks associated with the increasing congestion in the orbital environment and the strong support in the record for shortening permissible post-mission orbital lifetime, we believe it is appropriate to . . . assess potential maneuverability requirements, additional measures with respect to large constellations, and other possible approaches to mitigation of debris risks.” On sharing, the Space Safety Coalition (SSC) has stated that “operator communications and data sharing will remain the best strategy for avoiding collisions.”11

Vehicle upper stages present a particularly dangerous form of orbital debris but, thus far, have inexplicably fallen outside of regulatory oversight. Nearly all launch systems require an upper stage (or two) to boost spacecraft to their desired orbit, and unless reusable are inordinately dangerous due to their size and (at that point) lack of maneuverability. Yet launch companies have little incentive to foot the expense (specifically the fuel bill) that would be required to lift such stages, given that fuel used for de-orbiting can be used to boost revenue bearing customers. Upper Stage mitigation remains the low hanging fruit of the space debris tree and would seem ripe for regulation. When it comes to licensing, innovations such as reusable launch vehicles and smaller space thrusters12 have informed the rule-making process, with industry helping to define what is possible and practical.

Orbit: Government as an Aggregator of Debris Location Data

Once an object is on-orbit, tracking it and monitoring collision risk becomes the next priority. The USG initially looked to the military to provide “traffic control” services for objects in Low Earth Orbit (LEO). Currently run by the 18th Space Defense Squadron, the Space Surveillance Network is actively transferring

this responsibility to the Department of Commerce.13 The new Traffic Coordination System for Space (TraCSS) system is intended to be up and running by 2024. While the TraCSS capabilities are expected to be impressive, note that Commerce is not being tasked with “governing,” like Air Traffic Control, but rather “tracking,” or capturing data that the government may, or may not, decide down the line to use for other purposes.

Throughout the slow but steady handover process, Washington has been intentional about including private industry as part of the suggested solution. Via contracts14 for Space Situational Awareness (SSA) data analysis, the TraCSS system improves on the current tracking system by using commercial sensors around the globe, including strategically placed phased-array radars, telescopes, and antennas in key areas where U.S. military assets are currently sparse.15 Where the United States Space Force (USSF) only tracks objects larger than 10 centimeters16, generally speaking, commercial operators can reliably track down to 2 centimeters.

Richard DalBello, the head of the Office of Space Commerce (OSC), has indicated that his office will spend more than $36 million in fiscal year 2024 alone to acquire “commercial space situational awareness data, services, and pathfinders to integrate new services as TraCSS matures.”17

While government leaders have made clear they want to cooperate and not compete with private industry leaders in this domain18, one might reasonably ask why the government needs to insert itself at all where such capable commercial tracking vendors are already thriving. For one thing, the Pentagon has an interest in making sure that sensitive satellite information is appropriately redacted — they may not want to bear sole responsibility for tracking, but they do want input on the final result.19

For another, space is inherently international. If a private space debris tracker picks up that a U.S commercial communication satellite is about to collide with a Russian government weather satellite, it would naturally make sense to involve Washington in that analysis and any ensuing recommendations.

Finally, in many ways, governments remain the primary “culprit” when it comes to debris, as some of the most dangerous objects on-orbit are the remains of previous governmental projects launched well before modern technology or, frankly, modern incentives were in place to help mitigate debris.

Overall, it is safe to say that parties are optimistic about the new paradigm: government as less a producer and more of an aggregator, with private industry as the primary generator of data and advanced analytics. With a system such as TraCSS designed to “ingest” all those privately sourced inputs20, some of have even suggested that government could play the role as the industry’s “anchor” customer21, rather than as a competitor. The government cannot force “emergency landings” and send fighter jets up to escort roque spacecraft back to Earth, but commercial operators are adept at providing early and accurate alerts, and government actors have as much opportunity to benefit from these advances in data and analytics as anyone.

Debris Removal: Open Market

Strict launch regulations, precise orbital tracking, and a good amount of luck have, so far, proven sufficient to safeguard our strong and growing presence in space. However, with the astronomical growth in the number of satellites in LEO, and plans for more and more humans occupying commercial space stations, lunar outposts and more, we must take action not only to inhibit the creation of debris and avoid debris collisions, but to remove the growing amount of debris in crowded orbits. No number of clever regulatory incentives or real- time collision alerts can eliminate the underlying reality that man-made satellites will require intervention and removal beyond our current capabilities. Even with the best possible launch protocols and tracking, components will break, assets will get stranded, and the need to quickly intercept objects and accelerate the pace of de-orbit will only increase.

The question of which technology will be up to the challenge of clearing space is as unsettled as the question of who should be operating our future space “snowplows.” It seems unlikely that the three major space-faring nations will put their differences aside and cooperatively implement a removal (or even cost-sharing) system to remove debris. Plus, domestically, no U.S. agency has volunteered for the debris removal job, leaving commercial players with a prime opportunity to step up and take action.

NASA in the U.S., ESA in Europe, JAXA in Japan, and CNES in France have all been involved to one degree or another in advancing research into debris remediation. For example, in March of this year, NASA released a study entitled “Cost and Benefit Analysis of Orbital Debris Remediation,” looking at the pros and cons of various technologies, such as lasers to “nudge” debris remotely and “sweepers” designed to intentionally collide with debris.22 In June, the International Space Station U.S. National Lab awarded contracts to test privately developed debris capture technology using ISS resources and astronauts.23 Meanwhile, certain mega constellation operators have also contracted directly with pioneering debris removal contracted directly with pioneering debris removal.

According to official National Space Policy, governmental space systems should only develop “when there is no suitable, cost-effective U.S. commercial or, as appropriate, foreign commercial service or system that is or will be available.”24 In this situation, there is no reason for taxpayers to fund debris remediation when the biggest debris contributors (and potential remediators) are private companies which benefit from operating in relatively debris-free orbits.

Creating a system where satellite operators obtain performance bonds or use some other means to pay for their failure to remove their orbital debris, seems fair, given that those at greatest risk of creating debris (as assessed by performance track record, crowding at their chosen orbit, etc.) will undoubtedly pay more for those bonds. As important, it is also a way to turn the current thousands of debris objects into a lucrative market opportunity capable of driving private solutions to the debris removal challenge.25

On October 31, 2023, the U.S. Senate unanimously passed the Orbital Sustainability Act, calling for the OSC to publish dangerous debris lists, establish a NASA program to demonstrate debris removal technology, and encourage a multi-agency update to current regulations. Designed to “jumpstart the technology development needed to remove the most dangerous space junk,” the Senate passed an earlier version of the Act in 2022, but the House did not take up the legislation.


The launch / license model represents the traditional paradigm of government as “gatekeeper” — Uncle Sam implementing and enforcing standards informed by industry’s advancing understanding of which safeguards are technologically possible and which are economically feasible.

Even as the carrier / passenger roles have flipped (where the space shuttle used to transport commercial satellites into space, the government is now itself beholden to private carriers), everyone still acknowledges the central licensing role of the FAA and FCC. Tracking (both in terms of self-reporting and third-party validation) represents the newest vision of collaboration, with private industry producing the data and analytics more and more, and government stepping in as the “curator” (or, more accurately, co-author, publisher and bookstore) to ensure ready access to the vital information and services needed to successfully navigate space.

Debris removal roles are not yet clearly staked out. Governments have, so far, acted as cheerleaders, sponsors and in some cases, experimental facilitators, but no international body or specific government entity has claimed or been tasked with the central responsibility for debris removal. The role of orbital waste management could very well become the most commercial-sector-driven phase to date, with private operators contracting directly with private removers.

Even there, it is not difficult to foresee the emergence of government regulations that would mandate such engagements (at the risk of fines or license suspension). At that point, the system will have come full circle, with coverage for the risk of needing removal services becoming a requirement for a license to launch in the first place. Looking at these proposals holistically, it would seem that if proceeds from the risk coverage for failed deorbits were used to fund commercial debris removal missions, the net result could be a positive development for the types of technologies and know-how needed. If this is thought too onerous, perhaps the government can help to subsidize such coverage, at least initially. 

At this moment, DISH’s EchoStar-7 satellite continues to hurtle through space below its required “junkyard” orbit. In the not-so-distant future, the next time a commercial satellite fails to live up to a license requirement (its path tracked in real time and visible to all on TraCCS system), the operator could receive a bill in the mail from ACME Space Towing and Debris Removal. Until then, hopefully the issue will remain front of mind for policymakers and industry leaders and we won’t wait for a disaster of science fiction proportions to kick start us into action and incentivize the collaboration necessary to keep space navigable.


2 www.cbsnews.com/news/dish-fcc-satellite-space-junk-settlement/
3 www.bbc.com/news/technology-66993647
4 ig.ft.com/space-debris/
5 spacenews.com/faa-publishes-streamlined-commercial-launch-regulations/
6 spacenews.com/faa-expects-revised-launch-regulations-to-be-completed-next-fall/
7 spacenews.com/fcc-approves-new-orbital-debris-rule/
8 spacenews.com/fcc-urged-to-delay-vote-on-new-space-debris-regulations/
9 spacenews.com/fcc-urged-to-delay-vote-on-new-space-debris-regulations/
10 spaceref.com/press-release/aerospace-industries-association-letter-to- the-fcc-about-orbital-debris-mitigation/
11 spacesafety.org/best-practices/
12 fas.org/publication/how-do-you-clean-up-170-million-pieces-of-space-junk/
13 breakingdefense.com/2023/09/pentagon-plans-to-transfer-high- accuracy-space-tracking-data-to-commerce/
14 www.space.commerce.gov/commerce-department-awards-contracts-for-space-traffic-coordination-pilot-project/
15 www.gao.gov/assets/gao-23-105565.pdf
16 www.gao.gov/assets/gao-23-105565.pdf
17 breakingdefense.com/2023/09/pentagon-plans-to-transfer-high- accuracy-space-tracking-data-to-commerce/
18 breakingdefense.com/2023/01/exclusive-commerces-draft-space-traffic-management-service-goes-beyond-dods-baseline/
19 breakingdefense.com/2023/09/pentagon-plans-to-transfer-high-accuracy-space-tracking-data-to-commerce/
20 www.federalregister.gov/documents/2023/01/26/2023-01556/request- for-information-on-scope-of-civil-space-situational-awareness-services#:~:text=TraCSS%20will%20ingest%20the%20various,of%20 interest%20of%20this%20RFI
21 www.gao.gov/assets/gao-23-105565.pdf
22 www.nasa.gov/wp-content/uploads/2023/03/otps_-_cost_and_benefit_analysis_of_orbital_debris_remediation_-_final.pdf
23 www.uppermichiganssource.com/2023/06/29/kall-morris-inc-receives-contract-iss-research/;satelliteconfers.org/wp content/uploads/2023/06/ KMI-Receives-Award-to-Demonstrate-Tech-Aboard-International-Space-Station_Press-Release-2023-06-28.pdf
24 history.nasa.gov/national_space_policy_6-28-10.pdf
25 fas.org/publication/taking-out-the-space-trash-creating-an-advanced-market-commitment-for-recycling-and-removing-large-scale-space-debris/

Curt Blake

Curt Blake, Senior Columnist to SatNews Publishers, is Senior Of Counsel at Wilson Sonsini Goodrich & Rosati. He is an attorney and senior executive with more than 25 years of experience leading organizations in high-growth industries—and more than 10 years as the CEO of Spaceflight, Inc.— at the forefront of the New Space revolution. Curt has extensive expertise in strategic planning, financial analysis, legal strategy, M&A, and space commercialization, with deep knowledge about the unique challenges of New Space growth and the roadmap to success in the that ecosystem.

The views expressed in this article reflect those of the author himself and do not necessarily reflect the views of his employer and its clients.