2.28.2007
Space biz news via Milbank
(Been tied up and off blogspace for a few days -- deadlines, deadlines; but hopefully I've not missed too much planet-shattering news -- meanwhile, here's a nice, quick tidbit I've been meaning to post...)Law firm newsletters are a good way to keep up with industry. And they're free. A great example: Space Business Review from Milbank -- the firm's "monthly round-up of space industry developments for the information of our clients and friends." (And yes, let's just say Milbank has plenty of clients and friends. Not to mention about 550 lawyers and offices around the globe -- New York, Los Angeles, Washington, London, Frankfurt, Munich, Tokyo, Hong Kong, Singapore, Beijing....)
The concise, monthly newsletter focuses on satellites and space telecom business, featuring contracts, IPO's, launches, financing deals and more. Milbank should know. Here's the Jan. 2007 issue, and an archive of the newsletter since Jan. 2004.
And if you are a space hot shot and can afford to hire Milbank, call Peter Nesgos.
2.22.2007
Virgin & NASA
Over on Cosmic Log, Alan Boyle asks, "[w]as there ever an instance of mammals and dinosaurs helping each other out?" And Alan suggests an instance where the answer is yes: the memorandum of understanding signed on Tuesday by NASA and Virgin Galactic, LLC (an entity which the space agency's first press release of Feb. 21 specifies is "a U.S.-based subsidiary of Sir Richard Branson’s Virgin Group") "to explore the potential for collaborations on the development of space suits, heat shields for spaceships, hybrid rocket motors and hypersonic vehicles capable of traveling five or more times the speed of sound."But don't get too excited. As the second press release also of Feb. 21 hurriedly specifies, the MOU is "only a framework to explore potential collaborations. It does not include training of NASA astronauts, an agreement to buy seats on a Virgin Galactic flight, or provision of technical advice by NASA to Virgin Galactic."
And no, under the MOU, which is good for two years, "neither NASA nor Virgin Galactic will be required to pay any fees or provide funds to support the areas of possible collaboration."
But never mind. Shana Dale, Esq., NASA’s deputy administrator said, “By encouraging such potential collaborations, NASA supports the development of greater commercial collaboration and applications that will serve to strengthen and enhance the future benefits of space exploration for all of mankind.”
(And for some reason the release appears compelled to confirm Shana's credentials to say all that: "Dale is a longtime supporter of commercial space development. As the former staff director of the U.S. House of Representatives Subcommittee on Space and Aeronautics, she was instrumental in the passage of the Commercial Space Act of 1998. This legislation encourages commercial space development in a variety of areas, including launch vehicles, the International Space Station and the acquisition of space and Earth science data.")
And there you have it. If a space agency can be a dinosaur, with a little help from newfangled friends, anything can evolve.
2.21.2007
Virginia's Space Bill Passes Senate
Hot news out of Richmond via Jack Kennedy, Esq., on the Commonwealth of Virginia's pioneering, pro-space legislation, the Spaceflight Immunity and Liability Act (HB 3184): the state Senate today passed the bill unanimously, 40 to zero.Thus, the nation's first state law covering immunity from tort liability for commercial space launch operators and authorizing assumption of risk waivers for suborbital spaceflight participants has unanimously zoomed through both houses of the Virginia legislature.
Next the measure goes back to the House to accept the minor amendments --the Committee made two technical changes for specific state code references and added a sunset clause -- July 1, 2012 (which should make the Virginia Trial Lawyers Association happy). Finally, the bill goes to Governor Tim Kaine for his consideration.
Congratulations to state delegate Terry Kilgore and Virginia on moving this along. (See Jack's blog, Spaceports for more background; also my post here on the House's earlier passage of the bill.)
Will this vanguard legislation out of Richmond serve as a magnet to attract commercial suborbital spaceflight business to Virginia's Mid-Atlantic Regional Spaceport at NASA Wallops Flight Facility? Will it bring jobs and space investment capital to the area? It sure gives the state a running start into our nation's commercial space future. One other thing is clear, Virginia is one state that is not afraid to make history.
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(Jack, thanks for the updates, etc. I owe you the DVD of The Astronaut Farmer. And a bucket of popcorn. ;)
2.20.2007
Rockin' satellite radio
End of the blues for satellite radio?Yes? No? Maybe? Will the feds tune in to a $13 billion Sirius - XM merger?
This blog is not Space Radio Probe, but personally, my ears perked up last month when Federal Communications Commission chairman Kevin Martin said the long-rumored satellite radio merger is barred because existing licensing regulations prohibit a single owner's controlling the two satellite radio operations, then waited a few days and said, of course, those rules can change.
(And there's gotta be a lawyer joke here, too, but never mind that.)
In addition to FCC hurdles, Department of Justice will look hard at the competition question here. The big key to all this will be how the market is defined. Presumably, these satellite radio companies compete not only with each other but also with iPod's, iPhones, cell phones that play MP3's and other music, traditional radio, HD radio, internet radio, podcasts, and other entertainment systems, gadgets and outlets. It's a loud, loud world.
Meanwhile, the National Association of Broadcasters (NAB), termed the proposed merger "anti-consumer" and called on regulators to tune out the deal.
What about the politics of a satellite radio deal? Last month in an article on the possible merger, the Wall Street Journal observed, "The political climate at the Republican-controlled commission has been more strained than usual since Democrats took control of Congress, and it isn’t clear that the five-member commission’s two Democrats could be persuaded to support a further consolidation of the market, given their staunch opposition to relaxing media-ownership rules."
The paper also noted, "[s]ome communications lawyers say that if the Justice Department decided not to block a merger, the FCC could likely fall in line, as it has with some recent telecommunications mergers." (But don't forget a few years ago when the FCC nixed a proposed merger between satellite TV companies DirecTV and EchoStar....)
Meanwhile, along with pressure from investors and scrutiny by the government, other issues have satellite radio business singing the blues. Lawsuits and legislation seek to prevent listeners from recording music delivered via satellite radio.
RIAA's lawsuit is going forward. On Jan 19th a U.S. District Court Judge declined to dismiss an action by the recording industry against XM Satellite radio alleging copyright violations in connection with songs downloaded by subscribers using the Inno, a combo XM radio and MP3 player that enables users to record satellite radio streams. Judge Diane Batts ruled XM paid only to be a broadcaster but was acting as both a broadcaster and distributor of licensed music.
Over on the Congressional side, a bipartisan bill -- sponsored by Senators Dianne Feinstein (D-CA), Lindsey Graham (R-SC), Joseph Biden (D-DE) and Lamar Alexander (R-TN) -- the "Platform Equality and Remedies for Rights Holders in Music" (PERFORM) Act S. 256, would mandate, among other things, that satellite, cable, and Internet broadcasters incorporate content protection technology to prevent certain copying of songs.
Also, introduced in the House this week, the familiar, annual, NAB-backed attempt to block satellite radio from broadcasting local traffic, weather, and emergency content -- here is H.R. 983, the Local Emergency Radio Service Preservation Act of 2007. (As Mediaweek points out, all "previous attempts to pass this legislation have failed.")
In any case, despite uncertainty, Wall Street apparently bullish on the deal, remains tuned in. It's sort of like Howard Stern used to boast (back in his old terrestrial radio days) about why folks who love him or hate him all keep his show turned on -- they can't wait to hear what'll happen next.
Meanwhile, consumers, here are "10 Things You Might Not Know About the Sirius-XM Merger" via Gadget Lab (And hey, don't throw away your SIRIUS and XM satellite radio comparison chart just yet....)
2.16.2007
FAA Flybys
Yes, darnit, I missed the FAA’s 10th Annual Commercial Space Transportation Conference, held last week, Feb. 6-7 in Arlington. (It's always a terrific event and last year I especially had fun live blogging it; and I told AST chief Patti Smith when I saw her recently at a satellite finance conference in NYC that I would be there this year. Shame on me.)So instead of a regular Friday Flybys post today, here are some pointers to conference-related and other new goodies and info from our intrepid commercial space regulators at FAA/AST.
First -- drum roll please -- it's official: the hot new regs, Human Space Flight Requirements for Crew and Space Flight Participants, became effective February 13, 2007. (14 CFR Parts 401, 415, 431, 435, 440 and
460) A milestone in space law. If you haven't read them yet, now is the time.
Next, some newly released FAA Commercial Space Transportation Reports:
(I'm going through these are we speak.)
And this is a brief recap of the conference:
The FAA’s 10th Annual Commercial Space Transportation Conference, held February 6-7, 2007, featured a lineup of speakers and panels clearly focused on two facts: private human space flight is coming soon and the vehicles that will make it possible will be thoroughly tested, emphasizing safety in every respect.
Patricia Grace Smith, Associate Administrator of the Office of Commercial Space Transportation, opened the conference. She told the more than 200 assembled participants that the industry is comprised of “exacting people of science and business … guided by the twin credos of safety and excellence.”
As the conference unfolded, panels on topics ranging from the potential hazards of space weather; to human factors considered in launch vehicle design; to a discussion of when a launch vehicle is ready to carry passengers, repeatedly underscored and reemphasized the importance of safety.
Prominent speakers including Dr. Antonio Elias, Lon Levin, and Neil Milburn addressed the hands-on facts of the emerging industry. Anousheh Ansari, the first female private space traveler, delivered a first-hand account of what it’s like to live on the International Space Station.
Summarizing the conference, Dr. George Nield quoted the conference-opening words of Patricia Grace Smith, saying: “After generations of hope, we are doing what we hoped for.” It’s a fact in which FAA is a featured participant and will continue to play an active role in the exciting years just ahead.
That should do it for now. Have a slow faa..ast weekend ;).
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IMAGE: Left to right, astronauts Robert “Hoot” Gibson, John Herrington, Anousheh Ansari; FAA Associate Administrator for Commercial Space Transportation Patricia Grace Smith; Astronauts Pierre Thuot and Brian Binnie. (Courtesy FAA)
2.14.2007
Space Assets & Space Love
Two quick items today:1. A reminder -- tomorrow, Feb 15, is the deadline to submit your comments on the draft Space Assets Protocol. (That's UNIDROIT's Space Assets Protocol to the Cape Town Convention on International Interests in Mobile Equipment, of course.) Get your thoughts and suggestions over to Prof. Mark Sundahl. And as we say here on SLP, everyone who did not comment loved every word of the draft.
2. Happy Valentine's Day (and night) to astro-lovebirds Loretta & George. And all! ;).
2.12.2007
Weekend space law talk
In case you missed it this Saturday, after the frenzy last week over a certain fallen astronaut, Weekend America decided this would be a good time to briefly interview the Spacelawpundit himself about crimes in space. The professor good naturedly answered questions such as what would happen if Neil Armstrong held up Buzz Aldrin at gunpoint on the moon. Always a treat. Tune in to the radio segment here.
(The professor also surprised many listeners by not only acknowledging that he wrote a space law casebook, he even knew the book's title.)
Asked about the Nowak case, Prof. Reynolds did comment, "A lot of experts think NASA is much too squeamish about dealing with the problems of sexuality among astronauts and how that might affect a long-duration mission...." He said astronaut sexuality is "a real issue" and "NASA is going to have to pay attention to it and be a little less shy about admitting that it may exist in the future."
And unless I misunderstood, the professor appeared to offer his services as some kind of consultant on these sorts of issues for a prime-time soon-to-be Emmy-winning TV space related legal drama. (Law Trek? Space Law & Order?) How cool.
(The professor also surprised many listeners by not only acknowledging that he wrote a space law casebook, he even knew the book's title.)
Asked about the Nowak case, Prof. Reynolds did comment, "A lot of experts think NASA is much too squeamish about dealing with the problems of sexuality among astronauts and how that might affect a long-duration mission...." He said astronaut sexuality is "a real issue" and "NASA is going to have to pay attention to it and be a little less shy about admitting that it may exist in the future."
And unless I misunderstood, the professor appeared to offer his services as some kind of consultant on these sorts of issues for a prime-time soon-to-be Emmy-winning TV space related legal drama. (Law Trek? Space Law & Order?) How cool.
2.09.2007
Virginia leads the way
Attention, states that are serious about spaceports: take a look at the legislation pending in the forward-thinking Commonwealth of Virginia -- House Bill 3184 -- the nation's first Spaceflight Liability and Immunity Act, which flew through the 100-member House of Delegates this week by a vote of 99-0.The Act would grant to spaceflight entities immunity from negligence or wrongful death claims brought by suborbital flight participants (passengers and crew). That's one small bill for state tort law. One giant leap for personal spaceflight business in Virginia.
Under the proposed Virginia regime, to obtain immunity from liability a spaceflight entity must have its spaceflight participants read and sign a document that says:
"WARNING: Under Virginia law, there is no liability for an injury to or death of a participant of spaceflight activities provided by a spaceflight entity if such injury or death results from the inherent risks of the spaceflight activity. Inherent risks of spaceflight activities include, among others, risks of injury inherent to land, equipment, and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this spaceflight activity."
The immunity does not cover gross negligence, willful or wanton disregard for safety, or intentional torts.
What is the existing law on all this in the Commonwealth? Courts in Virginia have consistently held waivers of claims void as against public policy. (In Hiett v. Lake Barcroft Community Assoc., 244 Va.191, 418 S.E.2d 894 (1992), where injured triathalon competitor signed an entry form containing a waiver of claims for injuries, the court held "since the decision in Johnson's Adm'x v. Richmond and Danville R.R.Co., 86 Va.975, 11 S.E. 829 (1890), the law in Virginia 'has been settled that an agreement entered into prior to any injury, releasing a tortfeasor from liability for negligence resulting in personal injury, is void because it violates public policy.'" See also, Aldridge v. Atlantic Rural Exposition, Inc., 13 Cir. LS22264, 67 Va. Cir. 404 (2005); and, Estes Express Lines, et al v. Chopper Express, Inc., 13 Cir LS26714 (2005), citing ol' Johnson: to uphold the agreement in question would be "to hold it was competent for one party to put the other parties to the contract at the mercy if its own misconduct, which can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it, and contracts against public policy are void."
HB 3184 would preempt that state doctrine as to personal spaceflight immunity. The statute specifies required language for informed consent.
(Compare: The federal regs of course do not require waiver of liability between space flight participants and permittees or licensees (§ 440.17 (e)).
Will other states follow Virginia's lead? Watch the jurisdictions with spaceport dreams. For now, states and state courts are all over the map on this. For more background, take a look at FAA's Quarterly Launch Report for the 4th Quarter 2006 for a Special Report: Waivers of Liability: Are They Enough for Permittees and Licensees? -- which includes a quick overview of spaceflight participant liability waiver law in Alaska, California, Florida, New Mexico, Oklahoma, Texas, Washington and Wisconsin.
Jack Kennedy of Spaceports blog reports the next step foe the Virginia House measure is deliberation by the Senate Courts of Justice Committee; if approved by the Senate Committee the bill moves to the floor of the Senate and then to Governor Tim Kaine for signature, amendment, or veto in the spring.
HB 3184 is short, sweet, pro-space tourism as you please, and I don't mind posting it in full right here.
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Spaceflight Liability and Immunity Act.
§ 8.01-227.8. Definitions.
For purposes of this section:
"Participant" means any person, passenger, or crew participating in spaceflight activities.
"Spaceflight activities" means any activities necessary or antecedent to preparing, launching, carrying, or landing a participant on a suborbital flight.
"Spaceflight entity" means any public or private entity holding a United States Federal Aviation Administration launch, reentry, operator, or launch site license for suborbital flight.
"Suborbital" means a distance at or above 62.5 miles from the Earth's mean sea level.
§ 8.01-227.9. Civil immunity for spaceflight entities.
A. Except as provided in subsection B, a spaceflight entity is not liable for injury to or death of a participant resulting from the inherent risks of spaceflight launch activities, so long as the warning contained in § 8.01-227.10 is distributed and signed as required. Except as provided in subsection B, no participant or participant's representative is authorized to maintain an action against or recover from a spaceflight entity for the loss, damage, or death of the participant resulting exclusively from any of the inherent risks of spaceflight activities; provided that in any action for damages against a spaceflight entity for spaceflight activities, the spaceflight entity shall plead the affirmative defense of assumption of the risk of spaceflight activities by the participant.
B. Nothing in subsection A shall prevent or limit the liability of a spaceflight entity if the spaceflight entity does any one or more of the following:
1. Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and that act or omission proximately causes injury, damage, or death to the participant;
2. Has actual knowledge or reasonably should have known of a dangerous condition on the land or in the facilities or equipment used in the spaceflight activities and the danger proximately causes injury, damage, or death to the participant; or
3. Intentionally injures the participant.
C. Any limitation on legal liability afforded by this section to a spaceflight entity is in addition to any other limitations of legal liability otherwise provided by law.
§ 8.01-227.10. Warning required.
A. Every spaceflight entity providing spaceflight activities to a participant, whether or not such activities occur on or off a facility capable of launching a suborbital flight, shall have each participant sign the warning statement specified in subsection B.
B. The warning statement described in subsection A shall contain, at a minimum, the following statement:
"WARNING: Under Virginia law, there is no liability for an injury to or death of a participant of spaceflight activities provided by a spaceflight entity if such injury or death results from the inherent risks of the spaceflight activity. Inherent risks of spaceflight activities include, among others, risks of injury inherent to land, equipment, and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this spaceflight activity."
C. Failure to comply with the requirements concerning the warning statement provided in this section shall prevent a spaceflight entity from invoking the privileges of immunity provided by this article.
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IMAGE CREDIT: AP (Minotaur I rocket on the pad, Wallops Island, Va. Dec. 2006)
2.07.2007
This is not a space law case
It's a criminal law matter. And yes, it's also a space-laced psychiatric melodrama, not to mention media sensation of let's just say cosmic proportions, with all the right stuff for an "over-the-moon" "galactic love triangle" "astronauts gone wild," "rocketeers behaving badly" (pick your funny headline) bizarre reality show replacement, cable TV movie, and sizzling Court TV trial, but it is not a space law case.
(However I do want to congratulate the smart defense counsel who secured release for the accused flygirl by successfully arguing shuttle astronaut Lisa Nowak is not a flight risk.)
(And it is more than just a bit ironic that Ms. Nowak is perhaps the only accused person in history to wear a court-ordered GPS anklet who at least theoretically could have been on the space mission that launched the GPS satellite that is curtailing her freedom and monitoring her whereabouts. And, should the law-enforcing satellite malfunction, being trained in the robotic arm I imagine our unfortunate astronaut defendant would be happy to rocket back to space and do repairs.)
In any case, I'll let the crime law blogs start sorting this all out. (And by the way, as a naval officer, Captain Nowak's situation appears to be a military personnel matter as well.)
Meanwhile, what about NASA? Apart from the serious criminal charges against astronaut Nowak, how may the defendant's employer address concerns about any responsibilty it may bear for its role in this astro-passion play? So far our shocked and I presume very embarrassed space agency issued its first statement about this remarkable case just yesterday evening (prompting Keith Cowing to say of the short press release he was "certain that a dozen lawyers poured over it all day"). NASA said it was "deeply saddened" by the matter and confirmed Nowak is "officially on 30-day leave and has been removed from flight status and all mission-related activities."
Then, at a news conference today NASA second in command Shana Dale (a lawyer herself) said the space agency will review criteria for screening astronauts and evaluating them throughout their career. She confirmed NASA will review procedures to determine if any changes need to be made. Here is the CNN video of Shana's briefing.
By the way, Court TV has an online poll which asks respondents if they think NASA is responsible for not properly screening astronaut Lisa Nowak -- last I checked, 22.43% said yes, while a hefty 77.57% said no.
Going forward, this sort of criminal activity could one day happen, yes, in space. No matter the reason this particular astronaut ultimately became untethered, as one NASA Watch reader pondered, "What if she wasn't caught and she headed for a 6 month space station mission with a man, another heroine, a steel mallet, a knife, and some garbage bags?" Well? Cherchez la humans. Of course, we don't yet have a body of criminal space law precedent. But yes, in that case, quick, call a space lawyer.
2.02.2007
Friday Flybys - 2.2.07
Highs and lows this week (in no apparent order, like they happen) . . .2.01.2007
World Space Agency Wanted
Over at the globalization summit, and no, I don't mean that little shindig in Davos, I mean the Jan. 18th gathering of world space law gurus for the "Space Law in the Era of Globalization" roundtable, hosted by the National Center for Remote Sensing, Air and Space Law, one item on the table was the issue of whether the nations of Earth need to create an international space law regulatory body. Many experts think such an entity is indeed inevitable.(Well? I say, what's wrong with it? More jobs for space lawyers!)
Lots of other issues came up, too. As promised, moderator Prof. Joanne Irene Gabrynowicz's crew has graciously put together a video recording of the roundtable: morning and afternoon sessions. (This is a powerpoint for you powerpoint fans.)
And here's a brief recap of the roundtable, posted by the university.
OXFORD, Miss. -- Though current space law policy does not support the establishment of a world space agency or similar organization, some international space law experts meeting today (Thursday) at the University of Mississippi say it's just a matter of time before such an agency becomes a reality.
"I don't think the world has any choice," said Ram Jakhu, associate professor with the Institute of Air and Space Law at McGill University Law School in Montreal, Canada.
Jakhu explained that an organization will be needed to examine and mediate issues, such as public safety related to the regulation of weapons in space, as well as an expected increase in space law litigation caused by the growing number of private companies wanting to establish a presence in outer space.
An international space law regulatory body was one of many topics addressed during the round-table discussion at the university's Lamar Law Center. The daylong event was sponsored by UM's National Center for Remote Sensing, Air and Space Law and focused on "Space Law in The Era of Globalization."
The nearly two dozen space law leaders and policymakers, who journeyed to Oxford from across the globe, do not wholly agree on the function and management that such an international regulatory body would have. However, there was some consensus that necessity will dictate its establishment to deal with the many different space laws that have been created.
Stephen Doyle, honorary director of the International Institute of Space Law, said a number of models could be used to create such an agency, including the Universal Postal Union, which coordinates mail among countries, and the International Civil Aviation Organization, a United Nations agency that deals with aviation law.
Despite seeing the need for a body to oversee space law, most of the panel members agreed that current space law does work to some extent. However, Sergio Marchsio, a member of the U.N. Committee on the Peaceful Uses of Outer Space, said there is room for improvement for a number of reasons: The law lacks universality, the institutions that deal with space law are at times old fashioned and there is no clear mechanism to settle disputes surrounding globalization and the integration of the private sector into space law.
The round-table discussion, which was webcast live on the center's Web site, also included discussions on the efficacy of the current treaty regime, the U.S. national space policy, newly emerging space-faring nations, legal aspects of the Space Exploration Initiative, space tourism, peaceful uses of outer space and policies governing access to earth observation data.
And there is little doubt that the meeting of space law minds will result in new areas of study and activity in space law, said Joanne Irene Gabrynowicz, director of the UM center.
"These people are either the decision makers or the opinion leaders in their own countries," she said. "These are the people that their governments go to when they say 'How should we approach this question of usage of space?'"
Other participants in the event included representatives from the Polish Space Office & Centre for Science and Security at King's College in London, Mahidol University International College in Thailand, Office for Programme Matters in the European Space Agency, George Washington University Space Policy Institute, Space Law Practice Group, Brazilian Association of Air and Space Law, U.S. Office of International Aviation, University of Leiden in the Netherlands and City University of Hong Kong.
Also attending were two former general counsels for NASA, a former commissioner on the Arizona Space Commission and representatives from several U.S. law firms dealing with space law issues.
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(Thanks, Joanne and everyone. ;)
