Regulating Commercial Space Transportation: A New Frontier
If ever there was a complex puzzle, it was how to create a regulatory program for an entirely new, evolving commercial space transportation industry, the ultimate form of which was unimaginable. What would future spaceships look like? We didn’t know then, but we had seen the evolution of many technologies: automobiles, airplanes, cell phones, computers. Plus the internet was evolving right in front of our eyes. This was a challenge that could not be overestimated in its scope, depth, and importance. We’d all seen sci-fi movies, and knew what cinema spaceships looked like. There was no reason to believe that 30 years later we wouldn’t be seeing the same degree of creativity. A poorly designed regulatory structure could have incredibly stifling impacts on the future shape of commercial space transportation.
NASA and the US Air Force had shaped space transportation systems to fit their needs, and their launch vehicles had been created by their engineers with a narrow range of designs in mind. The rockets NASA and the USAF used had pedigrees going back to the days of World War II and Werner Von Braun, and all their designs were based on the concept of traditional expendable or reusable rockets. The space shuttle, in fact, didn’t look that much different. These government agencies used functional names to describe their space transport vehicles, e.g. expendable launch vehicles, reusable vehicles, payload assist modules. Even the official name of the space shuttle was Space Transportation System (STS).
Undoubtedly, the commercial sector would have its own ideas about the look of spaceships. What different kinds of designs would the unfettered imaginations of young engineers and designers influenced by Star Trek, Star Wars, and an unlimited number of science fiction books and comics begin to produce? Would they use unimaginative functional names for their launch vehicles, or would they have jazzy, fun names that would fire the imagination of the public and future generations?
Regulations have their good and bad sides. While protecting us, regulations heavily influence and shape the very industries they regulate. In our modern US society, the evolution of many of our areas of technological development has ended up being molded by the government regulations that control them, whether it be aviation, telecommunications, nuclear power, or our financial system.
It was necessary for the telecommunications industry to be deregulated before consumers could own their personal phones and before a cell phone industry could emerge. Aviation was stifled until air carriers were deregulated. Sooner or later, private sector innovators find their ideas being constrained or killed by a regulatory structure that doesn’t envision a change and which shuts the door to different avenues of development. Antiquated aviation regulations stifle drone manufacturers. Old-fashioned telecommunications rules handicap internet and cable. Innovative, life-saving drugs take forever to reach the consumer because of an archaic approval process. Soon, car manufacturers excited about self-driving cars are going to find themselves limited by regulations designed for human-driven cars.
I was, and still am, a critic of regulators. When I was first charged with developing the regulatory program for commercial space, I had had a lot of experience working with regulators, and I was soon about to become one. Regulators themselves tend to be the worst enemy of all. This is not a characterization of the people, but rather a description of the profession or role. By nature, they tend to be conservative because failure to enforce a regulation or easing a regulation causes a public outcry when there is an accident. Their view is backward looking because they deal with events that have just occurred or happened in the past. They are frequently second-guessed. It’s easier to add regulations than to take them away or lighten them. Their constituency is the public, and they are given little credit for being innovative or trying to foster the growth of an industry. In fact, Congress and the public criticize regulators for getting too close to their industries, claiming they are captive to the industries they regulate. There is no pizazz in being a regulator, so conservative is good. Over time, the regulations regulators create get locked into place…carved in stone….set in concrete.
In my opinion, this was the most important regulatory job of the future. A regulatory system that assumed that commercial launch vehicles would look or even operate in the same manner as the existing vehicles could easily prevent other, more effective concepts from being considered. Regulations that assumed that commercial operators would or should only launch from the existing National Ranges would discourage the development of commercial launch sites. Or even a regulatory system that assumed space vehicles would launch from land or earth could either prohibit the development of other launch site concepts or could preclude the development of yet unimagined space vehicles.
When the Commercial Space Launch Act was passed, its operative description of a transportation vehicle was “expendable launch vehicle”. If our regulatory system did not interpret that phrase as broadly as possible, it could raise future issues regarding yet to be designed reusable vehicles or even space planes. Regulatory uncertainty is the same as too much regulation. The Act also did not create an Agency to regulate payloads; it simply included them as part of the launch license. This created a potentially huge vacuum into which other Agencies could attempt to impose their ideas of the proper use of space, or worse yet exercise their jurisdiction. Open concerns that the government wouldn’t permit certain uses of space would discourage new uses of space.
It was imperative for DOT to be a one-stop shop that accepted any and all ideas and addressed them purely on a simple safety basis. There could be no judgment whether the concept was commercially viable, or whether the company was “real” or not. The regulatory process had to be prepared for any kind of space vehicle, no matter how different. Any proposal for a spaceport or launch site had to be treated credibly. Since the payload represented the market for launch vehicles, the authority Congress gave us had to be interpreted in such a manner as to permit us, if necessary, to be the pre-clearinghouse for new space applications. After all, who knew at the time whether someone would want to bury bodies in space, or perhaps bring their space object back to earth. At least in the near term, this regulatory process had to protect the industry from outside parties, as much as it had to protect the public.
As a case in point, when Space Services Inc wanted to launch a private rocket, the regulatory requirements were so overwhelming that SSI could easily have run out of funding during the long process. Or had NASA’s and the Air Forces insurance requirements prevailed, commercial companies would not have have been able to meet the insurance requirements and eventually all the companies would have had to drop out of the commercial launch field.
Ironically, had the industry failed, the government agencies involved would not have attributed the failure of the launch industry to the government’s own actions. Rather, many so-called experts in the space business said space was simply was too costly for commercial companies. Space transportation was a business only governments could afford. Many believed at that time that the private sector shouldn’t even be involved in space because all the private sector wanted to do was exploit the purity of space. In fact, during those early days, one often heard the word “flakes” to describe the space entrepreneurs who had grand visions of routine private sector space flights, or the idea that a lot of normal people would pay a lot for a ticket to ride into space.
Not only did we face the challenge of devising a regulatory framework that would be flexible enough to support all possible evolutions of commercial space transportation thought, but we also had to fight the prevailing space culture and expectations of NASA and the US Air Force. The moment the Department of Transportation was designated as the lead agency senior government and military space officials began visiting Secretary Elizabeth Dole and Jenna Dorn urging that them to start hiring space experts from the space community. These were people accustomed to dealing with contractors, and telling them how to design their launch vehicles, and controlling the space venue.
Jenna Dorn and I shared the view that the experience needed for DOT’s role was not space launch experience, but instead an in-depth understanding of regulatory processes, how to use them and how to avoid their pitfalls. After all, I didn’t need to know much about rocket launches in order to clear the way for Starstruck, but I did need to know how to move the regulators. That view eventually prevailed within DOT. As a regulator, DOT did not need rocket launch experience any more than Federal Aviation Administration officials need to have pilot’s licenses. What we needed to know was how to protect the public’s safety during space flight events. The space community accepted us, although with skepticism. Until we were able to prove that DOT had the right kinds of knowledge that neither NASA nor the US Air Force possessed, we were viewed by the space community as novices, know-nothings, and having nothing to “bring to the table.”