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Introduction to the national legal, regulatory and policy framework

The Brazilian space industry is currently undergoing major transformations. Over the past 12 months, the existing legal and regulatory framework concerning the operation of satellites has experienced substantial updates. Additionally, the Brazilian government's current policy is to enhance the country's profile in the global space industry by becoming one of the major launching states for commercial satellites and other payloads. It has taken relevant measures to achieve this goal during the past year.

Brazil has ratified and officially enacted the following United Nations space treaties by specific decrees,2 thus incorporating them into the Brazilian legal framework:

  1. the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies 1967 (the Outer Space Treaty);
  2. the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1968;
  3. the Convention on International Liability for Damage Caused by Space Objects 1972; and
  4. the Convention on Registration of Objects Launched into Outer Space 1975.

Brazil is neither a signing party nor has it ratified the United Nations Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979.

The National Telecommunications Agency (ANATEL), created in 1997 by Law No. 9,472 (the Telecommunications Law), is an independent government agency responsible for regulating the entire Brazilian telecommunications sector. ANATEL is responsible for granting, regulating and supervising satellite operation authorisations, which are the main instrument for enabling private parties to use orbital positions and radio frequency spectrum, providing satellite capacity over the Brazilian territory for satellite-related telecommunications services by interested third parties. Section II of this chapter presents an overview of the regulatory framework that ANATEL has created for the Brazilian space sector.

Two main government agencies are responsible for space matters: the National Institute for Space Research (INPE)3 and the Brazilian Space Agency (AEB).4 Both agencies report to the Ministry of Science, Technology and Innovation. Created in 1961, the INPE is a federal institute engaging in space research and exploration. Its purpose is to promote and implement studies, scientific research and technological developments, and to train personnel in the fields of air and space sciences, space engineering and space technology. The INPE works in close cooperation with the AEB, which is responsible for the Brazilian Space Programme (PEB) – a federal programme that encompasses the research and development of space launch vehicle technologies, satellite manufacture and space exploration in general.5 In addition to coordinating the PEB, the AEB is entrusted with establishing the regulatory framework for space launch activities. It has published new rules in this regard which are addressed in Section II below.

Regulation in practice

The regulatory framework of the Brazilian space sector can be divided into two main fields:

  1. the operation of satellites, primarily encompassing the right to use orbital slots and radio frequency spectrum, and to provide satellite capacity and consequently allow the provision of satellite-related telecommunication services; and
  2. commercial launch activities.
i Operation of satellites

The Telecommunications Law establishes the general requirements for the operation of satellites and the provision of telecommunications services supported by the satellite infrastructure. The operation of satellites is regulated by the national rules established by ANATEL through its specific regulations – in particular, ANATEL Resolution No. 748 of 2021, which was issued on 22 October 2021 and came into force on 1 November 2021 – and the international rules established by the International Telecommunication Union (ITU).

ANATEL Resolution No. 748 of 2021 enacts the Brazilian General Satellites Exploration Regulation and revokes several previous ANATEL rules on satellite operations, including ANATEL Resolution No. 220 of 2000, which was the main and most general rule regulating satellite landing right authorisations until the issuance of the new resolution. In addition, ANATEL enacted Law No. 9,523 of 2021 approving technical and operational requirements for satellite communications systems.

Frequency allocation

According to the relevant ANATEL regulations, the operation of satellites in and from Brazil must be carried out exclusively through the frequency bands specifically allocated to satellite services compatible with Brazilian telecommunications services (i.e., L-band, S-band, C-band, X-band, Ka-band, Ku-band, and Q/V-bands).

The regulatory framework for the use of radio frequency spectrum in Brazil is established by the Frequency Band Assignment, Allocation and Distribution Plan (PDFF)6 and is regulated by ANATEL Resolution No. 671 of 2016. As Brazil is a Member State of the ITU, the PDFF provides that its content should be compatible with the ITU's Frequency Allocations Table and, therefore, material amendments made by the World Radiocommunications Conferences7 to the Frequency Allocations Table should be reflected in the PDFF.

Types of authorisations related to the use of satellites

ANATEL requires satellite operators to obtain specific types of authorisations depending on the ITU radiocommunication services that the operators intend to provide in Brazil in association with the operation of satellites in the Brazilian territory, as follows:8

  1. The operation of satellites associated with fixed satellite, mobile satellite and broadcasting satellite services is subject to a satellite landing right authorisation,9 which grants operators the right to use specific spectrum and orbital positions to perform satellite communications and to provide satellite capacity to interested third parties. In Brazil, satellite capacity can only be provided to entities that already hold a concession, a permit or an authorisation to provide telecommunications services, or to the Armed Forces.10 The process for obtaining a satellite landing right authorisation was established by the Telecommunications Law and ANATEL Resolution No. 220 of 2000. As this resolution was recently revoked by ANATEL Resolution No. 748 of 2021, the latter is now the main rule regulating this type of authorisation.
  2. The operation of satellites associated with space operation and space research services, satellite-based Earth exploration radiocommunication services, and satellite-based meteorology services using a ground station within the Brazilian territory is subject to a radio frequency use authorisation called a private limited services authorisation.11 This is currently regulated by ANATEL Resolution No. 617 of 2013.
  3. The operation of satellites associated with satellite amateur radio (ham) radiocommunication services using a ground station within the Brazilian territory is subject to the amateur radio authorisation,12 which is currently regulated by ANATEL Resolution No. 449 of 2006.

Notwithstanding the above, there are also certain cases where the operation of satellites over Brazilian territory is not subject to any authorisations granted by ANATEL. According to ANATEL, these cases are:

  1. radiocommunication services of standard signals of frequency and time;
  2. satellite radiodetermination services; and
  3. inter-satellite services.
Satellite landing right authorisation

The satellite landing right authorisation, by which operators are granted the right to provide satellite capacity over Brazilian territory using assigned orbital positions and radio frequency spectrum associated with a Brazilian satellite network, is the most important regulatory instrument for commercial satellite operations in Brazil.

As with any other authorisation from ANATEL, obtaining a satellite landing right authorisation requires the initiation of an administrative process by ANATEL, which involves a technical and regulatory analysis carried out by ANATEL. According to the Brazilian General Satellites Exploration Regulation, the initiation of the administrative process must follow a specific application procedure, which includes the submission of the following documents:13

  1. proof of enrolment before the National Register of Legal Entities of the Ministry of Economy (CNPJ/ME) and registered corporate documents of the satellite operator or its legal representative in the case of foreign-owned satellites;
  2. a statement of the terms and conditions regarding the technical and operational requirements for satellite communications systems as set forth in Law No. 9,523 of 2021;
  3. simplified technical information about the satellite system;
  4. power of attorney granted by the satellite operator to the person submitting the application;
  5. a copy of the coordination agreements entered with satellite operators that are already authorised in Brazil, and, as applicable, the collocation agreements; and
  6. an indication of the entity responsible for the payment of the Telecommunications Overseeing Fund's public prices, currently set at 102,677 reais,14 and rates, in the case of multiple legal representatives.

To request a satellite landing right authorisation, the operator or the legal representative, as the case may be, shall not be:

  1. prohibited from procuring or entering into agreements with the Brazilian government; or
  2. considered disreputable or, in the prior two years, have a conviction resulting in the extinction of a concession, permission or authorisation related to telecommunications services, frequency allocation or satellite exploration.

The satellite landing right authorisation covers both Brazilian and foreign satellites, although there are a few differences between the approval processes related to each of them. ANATEL defines Brazilian satellites as those using spectrum and orbital positions (satellite network) under the responsibility of Brazil at the ITU and that have their tracking and control stations within the Brazilian territory, while foreign satellites are those using spectrum and orbital positions under the responsibility of other administrations at the ITU.

Brazilian satellites

With respect to Brazilian satellites, some of the amendments made by Law No. 13,879 of 2019 to the Telecommunications Law conflicted with certain provisions of ANATEL Resolution No. 220 of 2000. However, the Brazilian General Satellites Exploration Regulation updated ANATEL rules to bring them in line with the changes to the Telecommunications Law.

Under ANATEL Resolution No. 220 of 2000, which was based on the original version of the Telecommunications Law (that is, prior to the enactment of Law No. 13,879 of 2019), the standard process for granting Brazilian satellite landing rights would start with the initiation of a public procurement process, which would be waived under specific conditions. This means that ANATEL Resolution No. 65 of 1998 would also apply as it establishes the general procurement rules for concessions, permissions and authorisations of telecommunications services, as well as for the use of radio frequencies. In this scenario, ANATEL would implement an administrative procedure to verify the fulfilment of the specified qualifications and requirements only if the procurement process was previously determined to be unfeasible or unnecessary.

The amended Telecommunications Law (after the enactment of Law No. 13,879 of 2019) and the Brazilian General Satellites Exploration Regulation remove the public procurement process for granting a satellite landing right authorisation by allowing the authorisations to be granted directly through an administrative process established by ANATEL.15 In this sense, for the grant, modification or renewal of a satellite landing right authorisation, the operator shall formalise the request before ANATEL via an electronic form in accordance with ANATEL's Manual for Satellite Landing Right Authorisation Request of 2022.16

Granting of the landing right authorisation for Brazilian satellites is also conditional on the provision of a deposit of collateral by the operator that represents a commitment to operate in the space segment, which may be granted as a bank guarantee or cash bond and shall be equivalent to 100 times the public price defined by ANATEL for the satellite landing rights.17

In addition to the authorisation process, the Brazilian General Satellites Exploration Regulation also updates ANATEL rules in accordance with the new version of the Telecommunications Law in relation to renewals of satellite landing right authorisations. Resolution No. 220 of 2000 provided that a satellite landing right authorisation, granted for a period of up to 15 years, could only be renewed once for an additional 15-year term.

Nevertheless, the amended wording of the Telecommunications Law removes the existing condition on renewals, allowing ANATEL to grant multiple renewals of a satellite landing right authorisation.18 This is also reflected in the Brazilian General Satellites Exploration Regulation, according to which the authorisation may be renewed for an unlimited number of successive 15-year periods, provided that the operator states that it will renew the authorisation not less than two years before the expiration of the original term.19

Foreign satellites

In addition to the list of documents described above under 'Satellite landing right authorisation', foreign satellite operators are required to comply with the following to obtain a satellite landing right authorisation:20

  1. formalise before ANATEL the appointment of its legal representatives, which shall be legal entities incorporated under Brazilian laws and headquartered in Brazil, and its commitment to maintain up-to-date information and the fulfilment of the space segment's capacity by means of such legal representatives;
  2. present the proof of payment, via one of its legal representatives, of the public price fixed by ANATEL; and
  3. present a document issued by the responsible agency, together with a certified translated copy in Portuguese, evidencing the term and the conditions for the use of the space segment previously authorised in the satellite's country of origin.

Furthermore, any changes to the landing right authorisation granted in the country of origin after obtaining authorisation in Brazil may lead to a new technical analysis by ANATEL and potential modifications to conditions established by the agency for the exploration of the foreign satellite in the country.

Provision of satellite capacity

The Brazilian General Satellites Exploration Regulation expressly establishes that the provision of satellite capacity shall not be deemed a telecommunication service.21 This is because satellite capacity corresponds to the infrastructure provided by satellite operators to telecommunication services providers for the transit of signals.22

In this sense, under the Brazilian General Satellites Exploration Regulation, the contracting party providing the satellite capacity may or may not be an entity that already holds a concession, permission or authorisation to operate telecommunications services. Satellite operators shall only provide satellite capacity to authorised telecommunications and radio services providers or to the Armed Forces.

It is also worth noting that the Telecommunications Law sets forth that Brazilian satellites will have priority over foreign satellites used for the performance of telecommunications services whenever they offer equivalent conditions.23

This priority was also expressly provided for under the revoked ANATEL Resolution No. 220 of 200, according to which a condition was deemed equivalent when:24

  1. the time frame was compatible with the telecommunications service provider's needs;
  2. the price conditions were equal or more favourable; and
  3. the technical parameters met the telecommunications service provider's requirements.

The Brazilian General Satellites Exploration Regulation does not address this priority, although the mentioned provision of the Telecommunications Law is still in force.

Miscellaneous

Brazilian and foreign satellites must comply with the Telecommunications Law, and with any applicable national and international laws, regulations and treaties, during the period in which the satellite landing right authorisation is in force. With due regard to other potential civil and criminal liabilities, ANATEL may apply several administrative sanctions of varying degrees of severity.25 All formal charges pressed by ANATEL must be duly circumstantiated and sanctions will only be applied after the defendant has been assured of prior and full defence rights.26 ANATEL has the autonomy to ultimately decide on all matters within its authority, provided that the right to appeal to ANATEL's board has been granted.27 In any case, considering that ANATEL is a government agency, its decisions are restricted to administrative proceedings and may be challenged in court.

Global mobile satellite services authorisation

Unlike the types of authorisations already described in this section, which focus on the operation of satellites over Brazilian territory, the global mobile satellite services (GMSS) authorisation, as regulated in Brazil, represents a satellite-based mobile service that involves the use of satellite systems that have a coverage area that encompasses all or a large part of the global territory. It is utilised for the provision of different telecommunications applications based on the contracted satellite capacity.

GMSS are currently regulated by Normative Ruling No. 16 of 1997, which was approved by Ordinance No. 560 of 1997, issued by the former Ministry of Communications.28 This means they are currently governed by a set of outdated rules that are not entirely in line with those enacted by ANATEL with regards to the other existing telecommunications services in Brazil.

Although ANATEL has not yet formally enacted a resolution with updated rules to govern the provision of GMSS in Brazil, it has already adopted a simpler procedure regarding the granting of GMSS authorisations to interested private parties,29 which is more in line with ANATEL's rules for the other existing telecommunications services in Brazil and can be found on ANATEL's official website.30

ii Commercial launches

Considering the recent growth outlook of the global satellite industry, as well as the potential public benefits associated with it, the Brazilian government's current policy is to transform the Alcântara Space Centre (CEA), which is located in the state of Maranhão and is the country's main launch facility, into a spaceport and a hub for commercial launch activities in Brazil.31 To this end, Brazil has signed a Technological Safeguards Agreement (TSA) with the United States and a new regulatory framework has been created, enabling further developments in the Brazilian space industry. Brazil was also the first South American nation to sign the Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes (the Artemis Accords), which are guidelines proposed by the US National Aeronautics and Space Administration (NASA) for the responsible exploration of outer space in the coming few years.

Technological Safeguards Agreement

To protect sensitive technology and defend its strategic interests, the US government requires other countries and companies to obtain a US authorisation to launch satellites containing US systems and components before the applicable launch is performed. The TSA was signed on 18 March 2019 and was ratified by the Brazilian Congress32 on 12 November 2019 to ensure the protection of US technologies used in satellites launched from Brazil, making this an extremely important development in Brazilian commercial launch activities.33 According to the Brazilian Ministry of Science, Technology and Innovation, approximately 80 per cent of the world's space-related equipment includes US technology. Therefore, the TSA significantly expands the possibilities of launching US and any other satellites that contain systems or components manufactured in the United States (including Brazilian satellites) from Brazil.

The TSA updates an earlier bilateral agreement between Brazil and the United States that was signed in 2000 but was never ratified by the Brazilian Congress.34 When the previous bilateral agreement was being voted on in the Brazilian Congress, the opposition raised concerns regarding Brazilian sovereignty and rejected the proposal. These concerns were once again raised by the opposition in 2019. However, the government managed to obtain a majority vote for the approval of the TSA by asserting that the CEA will continue to be under Brazil's exclusive control, being directly subordinated to the jurisdiction of the Brazilian Ministry of Defence and the AEB. In addition to commercial launches, the TSA also includes other elements of aerospace cooperation between Brazil and the United States, including the sharing of satellite technologies.

Alcântara Space Centre

The CEA is currently the main launch facility for the AEB and the Brazilian Air Force (FAB) in Brazil. However, the government's intention is to transform the facility into a major spaceport by putting the CEA to commercial use by a wide range of launch operators.

When compared with other spaceports around the world, the CEA has significant competitive advantages owing to:

  1. the privileged location of available sites, which are close to the equator;
  2. proximity to the sea, which enables launches into both polar and equatorial orbits;
  3. low population density;
  4. an absence of earthquakes and hurricanes;
  5. low air traffic density;
  6. the weather, which allows for launches during the whole year; and
  7. an ideal location for responsive launches, which are characterised by the ability to launch a space payload on short notice and in a flexible manner.35
AEB Resolution No. 698 of 2021

AEB Resolution No. 698 of 2021, issued on 31 August 2021, revokes a number of previous AEB resolutions, including AEB Resolution No. 5 of 2002, which regulated the authorisation procedures for space launch operations in the Brazilian territory, and AEB Resolution No. 182 of 2020, which regulated the conduct of commercial space launch activities in the country and set out the requirements for obtaining the relevant licence.

AEB Resolution No. 698 of 2021 regulates two main topics: (1) the operator licence, which establishes the procedures and requirements for receiving the authorisation to carry out commercial launch activities in Brazil; and (2) the launch authorisation, which authorises specific launches and includes the flight of a launch vehicle, as well as pre- and post-flight ground operations.36 AEB Resolution No. 698 of 2021 establishes that all operator licences granted under the regulatory framework fixed by AEB Resolution No. 182 of 2020 shall remain valid and subject to its terms.37 In general, both resolutions contain many similarities; however, the new resolution establishes a more complete and robust set of rules, with more technical elements.

Operator licence

Pursuant to AEB Resolution No. 698 of 2021, any private legal entity that intends to launch orbital or suborbital payloads and perform in-flight tests using space devices within Brazilian territory shall obtain an operator licence.38 A launch operator licence may only be granted to a private legal entity – which may be an individual entity in an association or a consortium – provided that the licensee is headquartered or legally represented in Brazil.39 The licence may contain restrictive conditions in accordance with national security interests, Brazilian foreign policy and applicable international obligations undertaken by Brazil.40 It shall be granted for a period of five years, with an option for renewal for equal and successive periods.41

Obtaining a launch operator licence requires initiating an administrative process similar to the landing right authorisation that must be carried out exclusively by electronic means.42 This process requires filling out an application form and submitting specific documents, which will be verified, processed and assessed by a special committee composed of at least three members appointed by the president of the AEB.43 The documents must include the following:44

  1. information about the corporate entity applying for the licence;
  2. technical qualifications of the corporate entity, consisting of proof of suitability for performance of the proposed space launch activities, as well as the qualifications of the members of the technical team who will be responsible for the proposed activities (these may be obtained through the presentation of certificates or other appropriate documents); and
  3. certificates of good standing regarding tax and employment obligations (which includes the presentation of documents such as proof of registration with the CNPJ/ME, and other relevant enrolments and certificates).

As part of its role, the AEB will continue to monitor the licensee after the licence is granted. It may carry out this function directly, through the execution of adjustments with public or private entities, or through third parties contracted for the provision of specialised technical services, in accordance with the relevant legislation.45 The president of the AEB must also indicate a representative to supervise all activities indicated in AEB Resolution No. 698 of 2021 and this person will have powers to, among other things, request all information and clarifications deemed appropriate from involved parties, directly or indirectly inspect all workplaces, suggest the application of fines and penalties, and initiate investigative administrative proceedings.

In addition, the AEB may apply administrative sanctions if certain space launch activities violate the terms of AEB Resolution No. 698 of 2021.46 Possible sanctions are a warning, temporary suspension of the licence or permanent termination of the licence, depending on the severity of the violation, the licensee's record and the actions taken by the licensee to mitigate the damage caused, if any. In addition to these administrative sanctions, operators may also incur civil or criminal liability (or both) in line with the laws of Brazil, if applicable. All the AEB's decisions denying the grant or modification of a licence, suspending a licence, revoking a licence or imposing any other sanctions are subject to appeals to the president of the AEB within 10 consecutive days from the notification of the licensee.47

Launch authorisation

The launch authorisation48 established in AEB Resolution No. 698 of 2021 applies to all commercial launches carried out in Brazilian territory by private legal entities either headquartered or legally represented in Brazil and to all commercial launches performed by Brazilian companies outside Brazilian territory.49 However, AEB Resolution No. 698 of 2021 does not apply to military launches, which are subject to the FAB's command. The AEB defines 'space launch activities' as a set of activities associated with launching satellites and other types of payloads to space (orbital, suborbital or in any other position in outer space) through launch vehicles, including the tracking, recovery and return phases.50

Holding a valid operator licence is a condition precedent to initiate the relevant administrative process to obtain a launch authorisation – which is also carried out by electronic means and in similar form – and to conduct a launch.51 In summary, some of the main characteristics of the launch authorisation are:52

  1. the authorisation is linked to the legal entity holding the operator licence;
  2. the licence may contain restrictive conditions at the AEB's sole discretion;
  3. the licensee shall take out insurance coverage against damage caused to third parties and to the CEA infrastructure because of a launch, in values to be established by the AEB;
  4. liability for damage arising from launch activities shall be governed by the international treaties and conventions to which Brazil is a signatory (indicated in Section I above) and other applicable rules and regulations, and the licensee shall be the only liable party and is prohibited from assigning this responsibility to the public administration under private agreements; and
  5. the authorisation shall be conceded for an undetermined term, provided that the parameters for the relevant launch or launches are maintained (if the parameters are altered, the licensee shall request a new authorisation from the AEB, which may use the original administrative process for the authorisation).

AEB Resolution No. 698 of 2021 also provides for the possibility of transferring the launch authorisation, subject to prior approval from the competent authorities and other requirements established therein.53

All launch activities will be monitored by the AEB and its special committees, and the president of the AEB will indicate a technical representative to overlook all authorised launches, with specific powers to interrupt any launch activity at any time and whenever necessary to guarantee safety and the enforcement of the relevant rules, and to suggest the application of penalties for any identified irregularities, errors or conflicts.54 With regard to administrative sanctions and their relevant appeals, the rules applicable to the launch authorisation are similar to those applied to the operator licence, as described above.55

Artemis Accords

The Artemis Accords were established in 2020 by NASA and the US Department of State to reinforce international treaties to which Brazil is a signatory party – especially the Outer Space Treaty. They set guidelines for the peaceful exploration of deep space between countries in the twenty-first century, including efforts related to the Artemis programme, which is led by NASA and described as the 'twin sister' of the Apollo programme.56 The Artemis programme intends to send the first woman to the surface of the Moon by 2024 and establish a sustainable human community on the celestial body by the end of the decade, with international and commercial partners.57

Principles of the Artemis Accords include transparency, interoperability of involved nations' systems, emergency assistance among signatories, preserving heritage, deconfliction of activities and the safe disposal of orbital debris, among other principles.58

As at 14 October 2022, 21 countries have signed the Artemis Accords. Brazil initially signed a statement of intent in December 2020 regarding potential cooperation with the project and officially became a signatory party on 15 July 2021. Brazil is the first South American nation to do so, represented by the Ministry of Science, Technology and Innovation.59