Crawling, Walking, Running Out of Time…

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a drone over a city skyline running out of time

Are the FAA’s Drone Regulations Holding the Industry Back?

On March 30, 2023, the US Congress’ Subcommittee on Aviation held a hearing to discuss the FAA’s role in regulating drones. The hearing had a very Washington-ian title: “Harnessing the Evolution of Flight to Deliver for the American People.’’ The Subcommittee’s chairman, Representative Garret Graves (LA), set the tone in his opening statement when he said: “We cannot allow the opportunities these (drone) technologies provide to our constituents to be stifled by endless red tape and requests for more data and studies… The last thing we need is the FAA’s lack of leadership and its unwillingness to accept new ideas to drive the next great age of aviation out of America.” From the FAA’s perspective, the hearing was, unfortunately, all downhill from there. And when discussing aviation, downhill is never a good thing.

A Brief HIstory of the FAA and Drones

In 2012, Congress passed the FAA Modernization Act, which tasked the FAA with developing a “comprehensive plan to safely accelerate the integration of civil UAS (unmanned aerial systems) into the National Airspace System (NAS). This was more than a decade ago. At that time, drones were still relatively new in the public eye, but their promise was already obvious. In a 60 Minutes interview in 2013, Jeff Bezos famously promised that Amazon would soon be using drones for 30-minute deliveries. The FAA, however, had other plans.

From the outset, the FAA recognized the enormity of this challenge, integrating drones into a world built for manned aircraft. The FAA—at least initially—set out to take baby steps toward a comprehensive regulatory framework, frequently describing its strategy as “crawl, walk, run.” In other words, the FAA aimed for incremental gains. 

Spurred on by the 2012 mandate, the FAA soon began to crawl. In 2014, it awarded UAS test sites to seven states (New York, New Mexico, North Dakota, Nevada, Texas, Alaska and Virginia), with the intent that these locations would become proving grounds and incubators for this developing technology. Those sites have been largely successful toward that goal.

Two years later, in 2016, the FAA arguably stopped crawling and took its first step when it published the final rule for Small UAS Systems (commonly known as “Part 107”), a framework allowing small (under 55 lbs) drones to be flown commercially. But Part 107 came with major caveats, most of which are still in effect. Under the rule, drone operators cannot fly a drone beyond their visual line-of-sight (BVLOS) and are prohibited from flying more than one drone at a time. Combined, these restrictions make it nearly impossible to scale commercial operations under Part 107 (think of the Amazon example). The FAA does offer waivers for certain restrictions under Part 107, but after eight years, the waiver application process remains extremely expensive, time consuming and unpredictable (most waiver applications are denied). For these reasons, waivers are widely seen as a stopgap measure, not a long-term solution for the industry.

The FAA continues to chip away at Part 107’s limitations. In 2021 they issued a final rule for “Remote ID,” which essentially mandates digital license plates for drones. Also, a rule allowing BVLOS flights—widely considered the “holy grail” of drone regulations—is in progress and could be implemented in the next two years. Even so, the private sector widely views these incremental gains as an increasingly significant burden on the industry.

Helicopter Parenting? The Dangers of Too Much Regulation.

All regulations represent a balancing act between private innovation and the public good. Even the most fervent drone advocates recognize the need for some regulation. But, as the Aviation Subcommittee hearing last year made clear, there is widespread concern that by hyper-focusing on potential risks, the FAA is causing more harm than good.

The drone industry requires public acceptance of this technology, but if flying them is too burdensome, their benefits cannot be shown. The public will become more tolerant of drone accidents (and drone noise, trespasses, etc.) if and when drones can demonstrate their value, even amidst the risks. As examples, both airliners and automobiles have been accepted as “valuable” in our society. With this acceptance, those technologies earn a degree of tolerance when they malfunction, even tragically. For drones to earn this same level of public acceptance, people must first learn and accept their value. Drones will never be able to demonstrate this value when grounded on a shelf under endless red tape. Sitting on a shelf, they do no good.   

Finally, over-regulation can be fatal to innovation. Like any emerging technology, the drone industry will continue to require a significant capital investment to drive research and development. Expenditures on unproven technology are essentially (educated) bets on the future; and these bets will not be placed if there is too much uncertainty over the regulations for a product. Right now, the FAA has undoubtedly sown some doubt about whether, and how soon, the drone industry will move from walking to running. 

In Defense of Slow: Why The FAA isn’t (completely) wrong.

Because the drone industry is young and (relatively) unproven, accidents could lead to major setbacks for the industry. From a high level, many will argue that erring on the side of caution makes more sense when the risk of public backlash is so high. Part of this risk, from the FAA’s perspective, stems from the accessibility of this technology. Compared to buying a Cessna, drones are very cheap and easy to acquire. Unfortunately, the regulations governing the use of these machines needs to be tailored to the least responsible users.

Speaking to the challenge the FAA faces in developing “drone regulations” it is somewhat overlooked that while the FAA considers drones to be “aircraft,” drones and manned airplanes are fundamentally different machines in many ways, and pose fundamentally different risks. The volumes of existing FAA regulations that have been drafted and revised over the past few decades were tailored exclusively for manned aircraft. Trying to fit drone operations into the existing regulatory framework is hammering a square peg into a round hole.

Also, Drone regulations implicate many federal agencies and entities beyond the FAA. The use of drones, and the eventual integration into the national airspace, is raising an enormous number of interrelated legal and regulatory hurdles. These include data protection, civil rights, access to bandwidth on the spectrum). The FAA’s internal bureaucratic challenges — which are formidable — become a far greater burden when the FAA is tasked with creating a comprehensive, cohesive, consistent regulatory framework with other federal agencies.

Finally, this article hasn’t even touched on the world of state and local regulations, including civil liability for trespassing, invasion of privacy and a host of others. The legal framework governing this type of liability goes beyond the FAA’s jurisdiction, and a host of questions in this arena remain unanswered.

Conclusion: Light at the End of the Red-Tape Tunnel?

For all the regulatory hand-wringing, there may be hope. As mentioned above, the implementation of a BVLOS rule, allowing drones to be flown beyond visual line-of-sight, would be a major step forward for the domestic drone industry; the FAA recognizes this urgency as well, and the industry is optimistic, if guarded, that a rule will emerge in the next two years. 

Another solution, which has been widely promoted (including within the FAA) is expanding the use of “type certifications” for drones. In a nutshell, manned aircraft require an “airworthiness certificate” to fly. Instead of individually reviewing each airframe coming out of the factory, though, FAA issues “type certificates” for a specific aircraft design. Every version of that model is pre-certified and subject to fewer regulations. Wide-scale application of this system would be significant. There are certainly other solutions on the horizon and innovative firms like 3i Law are working alongside UAS manufacturers, operators, service providers, and educators to navigate this evolution. A decade ago Jeff Bezos promised drone deliveries to our doorstep. To state the obvious, we are not there. It is overly-simplistic, however, to simply blame the FAA for this entire challenge and perceived lack of progress. The FAA has many very justifiable reasons for insisting on crawling, and walking, before this industry can run. At the same time, America’s penchant for innovation has often relied on a partnership with the public sector based on shared goals. It remains to be seen how, and to what degree, the FAA and America’s drone industry can find a common path toward the goal of drone integration. But it is clear that the rest of the world will not wait to find out.

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