Out of this world – space law experts lift the lid on satellite launches and broadband battles
More than 100km above the Earth's atmosphere, national and international law stops and space law starts. Here, space law experts talk about the outer limits
March 11, 2015 at 02:54 AM
10 minute read
Between the time you woke up this morning and the time you got to work, you were probably in contact with between 22 and 26 satellites. All of your communications, your television, weather satellites, Google maps, the GPS in your car or at the bus stop – it quickly adds up to a lot of contact with a lot of space hardware.
And yes, it is rocket science to get those things up there and to stay there. But it also takes a number of specialist lawyers who are experts in space law and the unique demands of the commercial world of space satellites.
Moreover, while the UK is playing an increasingly important role in the US-dominated space business, London arguably has a preeminent role in the field of space law. "English law has a lot to offer the space business because it is so well established," says John Worthy, a Fieldfisher partner who heads up the firm's 15-strong satellites and space projects team. "It's recognised as a reliable legal framework, and in many case perhaps the telling requirement is that it's neutral."
For example, when Worthy advised the government of Azerbaijan on its first communications satellite launch, it was a global project involving a Malaysian satellite operator, the purchase of a satellite from a US manufacturer, and the February 2013 launch by the Ariane 5 rocket was in French Guiana, with finance coming from the US and France. Worthy's team spent three years advising Azerbaijan on the whole package. But while English law may not have been anyone's first choice (there's a natural bias to prefer one's own jurisdiction), it was everyone's second choice.
"It's a great export business for the UK," adds Worthy.
Seven seconds away
The community of London space lawyers isn't very big, and so the leaders tend to bump into each other on the conference circuit. Interestingly, they are less likely to bump into each other on opposite sides of the table. Tom Levine is an Australian who studied at the Institute of Air and Space Law at McGill University in Montreal, and now heads the global telecommunications practice at Allen & Overy. He explains that one side of a satellite transaction will typically be dominated by in-house lawyers, while the other side will rely more on external legal advice.
There are not many satellite manufacturers (Airbus, Thales Alenia, Boeing, Lockheed Martin and Loral dominate the space) and even fewer organisations that can launch satellites (ILS, Ariane and SpaceX) – so if you're representing a client who wants to operate a satellite for media or communications or scientific purposes, the manufacturers and launch providers "don't particularly feel they need to negotiate their terms and they don't like it when you try to negotiate with them", Levine says.
"They've been doing the same thing for a long time and saying 'no' to the same things for a long time, and they don't really like it when somebody says: 'Well, we do have choices and you need to explain to me why you take that position.'"
Levine clearly relishes the opportunity to have a scrap with the manufacturers, the launch providers or the insurers. "We're contract lawyers so it's about risk allocation," he explains. "For example, you have to make sure that the insurance policy [covering the risk of the satellite being destroyed] applies at the point that risk transfers away from the manufacturer. We always have a bit of a fight with the Americans about this because they say that risk transfers to our customer when you press the button to launch. We always say, no, risk transfers to the customer when the rocket lifts off the ground.
"I know that sounds ridiculous but the seven seconds between those two things is the riskiest moment in a satellite project. In those seven seconds there's a couple of hundred million dollars at stake so you have to get that bit right."
There is no shortage of other sources for disagreements. Many of the satellite manufacturers are American, of course, but the US Department of State regards much of the technology as potentially 'dual use' and therefore subject to export licensing. "Manufacturers always say: 'That's not our fault, what can we do?'" Levine continues. "And we say: 'Actually, you can do a hell of a lot: you're used to selling this stuff all the time to people like us so we expect you to manage that risk with the US government. If the project is delayed because you haven't got the licence from the US government, unless you can prove that there was nothing more that you could have done then it is your fault.'"
Satellites can fail while they're in orbit, of course, but "once they're up there, they're up there", as Levine puts it. Most famously, the Hubble space telescope's mirror had been miscalibrated but the space shuttle mission that fixed it is no longer an option: the shuttle was retired in 2011.
Less famously, a multiple satellite system called O3B recently saw four of its eight satellites suffer component faults, which will limit their life expectancy. O3B stands for the 'other three billion' people in the world who don't have broadband internet access: the idea is that a 'constellation' of satellites – eventually 16 in number – will encircle the globe 8,000km above the equator, offering communication links to Africa, Asia and Latin America at speeds that rival fibre optics' capability. "We did the financing for that. They're insured and so the financing is all right," Levine says. In fact, the satellite trade press says that insurers are coughing up more than $300m (£197m).
The launch providers throw up more challenges for the legal teams representing satellite operators. "If the US government says it needs to do a launch, such as a resupply mission to the International Space Station, the launch provider can just postpone my client's launch for as long as it takes," Levine explains. It's only possible to do around one launch a month, so if the Americans step in and the following four or five slots are already booked by other customers, it can be months before your launch can take place. "But it's my job to work these things out," he adds. "There are compromises."
It's law, Jim, but not as we know it
At Bird & Bird, Joanne Wheeler (pictured) is a partner in the communications group. She is particularly renowned for her expertise in space regulatory and policy matters – though she used to want to be an astronaut: "Did I want to walk on the moon? Absolutely!" Instead, she studied space law at the University of Aberdeen.
Regulatory issues surround the space business. Permission is needed to launch a satellite, permission is needed to put it in a particular place in a particular orbit and permission is needed for it to beam radio signals up and down to the ground using a particular frequency. The International Telecommunication Union is the global regulator, but national agencies are also involved.
But while the business of getting a licence is essentially 'first come, first served', the complexities and technical information needs of the detailed filings are such that applicants could find they are not able to complete the process within a specified timeframe (typically seven years) – there is a 'use it or lose it' aspect to the regulatory approval process.
But if that sounds mundane, it's actually more like "frontier land", Wheeler says. And like the Wild West, there's a gold rush taking place. Wheeler declines to name the client she is working for, but the biggest of the big-name entrepreneurs – billionaires Richard Branson of Virgin and Elon Musk, who made his fame and fortune with PayPal, Tesla Motors and SpaceX – are battling it out for the multibillion-dollar prize of being the first and only operator of a constellation of thousands of satellites offering high-speed broadband to billions of people who don't currently have internet access. There can only be one winner: there isn't enough space or capacity in the radio spectrum for a runner-up. "It is fascinating watching the entrepreneurs that play for this frontier land," Wheeler says.
If this sounds like what O3B is doing, then here comes the science bit: Branson and Musk want to put satellites into a so-called 'low Earth orbit' that's much closer to Earth than O3B's 'medium Earth orbit' – just a few hundred kilometres up. Therefore, each satellite's 'footprint' is smaller and it flies across the sky much more quickly than the O3B satellites, and so many more satellites will be needed to provide the necessary coverage. But because the satellites will be much closer to Earth, rivals Branson and Musk each claim their system will have faster data transmission than O3B. Traditional communications satellites are at an altitude of 36,000km in what is called a geostationary orbit where they 'park' in what appears to be a fixed point in the sky.
Wheeler has several space industry clients who are at the cutting edge of technology. The problem is that space regulations have yet to keep up. "You're sometimes having to interpret, stretch and mangle the law to try and make it fit," she explains. For example, one client is working on a system that completely bypasses the need for a radio signal (which has very detailed regulations) and instead will beam its signal to Earth using optical laser technology – "That's fascinating. What regulation applies there?"
Another of her clients is building so-called nano-satellites – about the size of a shoebox. The challenge here is that these tiny satellites can cause almost as much damage as large ones if they were to hit another satellite in space or fall out of the sky to the ground. As a result, the insurance requirements are just as onerous as for large satellites, even though the premiums are disproportionately greater relative to the cost of building a nano-satellite. "That's a big issue at the moment and it's not easy to resolve," Wheeler says.
Fieldfisher's Worthy has been advising on a project that is really catching the public's imagination. Since it was unveiled last November, Lunar Mission One has raised initial development funding of more than £670,000 from more than 7,000 backers on crowdfunding platform Kickstarter. Stephen Hawking, Brian Cox and Stephen Fry have all supported the project.
The plan is that within 10 years a lander will be sent to the moon where it will drill down between 20 and 100 metres deep into the lunar surface and then analyse the material to improve our understanding of the formation of the moon and the Earth. "It's one of the most inspiring space programmes since the Apollo moon landings," Worthy says. "We're doing all of the legal work for the programme, which will firstly set up the joint venture contract arrangements among the sponsors and backers. We'll be dealing with the management of the procurement for the lander itself, and we'll be handling all of the other incidental stuff that goes with a major project. We are the lawyers helping to make it happen."
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