Nov 6, 2018

The Good and the Bad of FAA Reauthorization Drone Policy

Andrea O'Sullivan Feature Writer , Michael Kotrous Program Associate

After several short-term extensions to temporarily fund the Federal Aviation Agency (FAA), the House and Senate recently agreed on legislation that funds the agency for the next five years. The FAA Reauthorization Act of 2018, signed into law last month, includes several pro-innovation aviation reforms and contains several important changes to US drone policy.

The need to reform the FAA’s approach to drones has been clear for some time. America houses some of the most cutting-edge companies in drone development. Yet many American firms and entrepreneurs started testing drone operations like package delivery in countries with more permissive drone policies (e.g. Canada and the UK).

With the latest FAA Reauthorization, there is good news and bad news. On the one hand, the legislation does direct the agency to adopt a risk-based approach to drone policy, which is a huge step forward from the largely knee-jerk and unscientific path pursued thus far. It also tackles drone integration into the US national airspace seriously, which is another great sign.

On the other hand, the Act puts the squeeze on a small but engaged group of model aircraft hobbyists that had enjoyed relative freedom from onerous oversight for decades.

Striking the right balance between the FAA’s safety mission and a permissionless innovation approach to drone policy is challenging, but the FAA Reauthorization is a good first step. We will discuss some of the beneficial changes in more detail, as well as how some of the law's shortcomings can be addressed.

Introducing a Risk-Based Approach to Drone Regulation

Earlier this year, a report from the National Academies of Sciences (NAS) issued a scathing review of the FAA’s “near zero-tolerance” culture. Several provisions of FAA Reauthorization require the FAA to take a “risk-based” approach when considering changes to its restrictions on drone activities, a substantial and welcome change to the FAA’s risk philosophy.

Specifically, the NAS report takes issue with the FAA’s process of issuing waivers that are required in order to operate drones in ways restricted by FAA rules. Before granting a waiver, the FAA asked operators to show they were prepared to handle any hypothetical dangerous scenario, putting applicants in the awkward position of having to show definitively that experimental technologies could not fail.

Both the NAS report and FAA Reauthorization assert that the FAA’s conservative approach to drone innovation is holding back important progress that “could improve the safety of manned aircraft operations” and “spur economic growth and development through innovative applications of this emerging technology.”

Both acknowledge that the FAA will have to reverse restrictions before drones can reach their potential, including restrictions on nighttime and overhead flights, as well as flights beyond the operator’s visual line of sight.

To that end, the FAA Reauthorization includes provisions that may expedite the FAA’s review and lifting of drone restrictions. First, Congress gives the FAA one year to “update existing regulations to authorize the carriage of property by operators of small unmanned aircraft systems for compensation or hire within the United States.”

That provision does not explicitly mention authorizing delivery flights beyond the operator’s visual line of sight, but this reform could allow the drone delivery industry to get the toehold it needs to demonstrate safety and persuade the FAA to relax restrictions.

Further, FAA Reauthorization codifies an administrative directive that established the Integrated Pilots Program. In May of this year, 10 state, local, and tribal governments were selected as “sandboxes” for drone experimentation. The purpose of this program is to allow experimentation with beyond line of sight flights, detect and avoid technologies, command and control links, as well as testing how factors like weather and human judgment affect operations.

Seeing the importance of these sandboxes, the Act authorizes the FAA to establish new “test ranges” to advance the integration of drones into the national airspace.

Registration and Examination Requirements for Hobbyists

Model aircraft enthusiasts have been taken for a ride as the FAA has attempted to regulate drones over the past few years. Previously, this small but dedicated group of hobbyists have safely and responsibly enjoyed their pursuits with wide regulatory berth and little, if any, safety issues for decades.

A previous airspace bill, the FAA Modernization and Reform Act of 2012, provided protection to model aircraft operators. Section 336 of that act clearly carved out a space for these tinkerers, stating that the agency may not “promulgate any rule or regulation regarding model aircraft.” Indeed, the FAA’s first attempt at mandating small drone registration, even for those flown for recreation, was overturned in court following a legal challenge led by model aircraft groups.

Under FAA Reauthorization, Congress has repealed Section 336, and everything from drone cameras to historical scale models to even paper aircraft will be put in the same regulatory bucket of “unmanned aircraft.”

This repeal opens the door for the FAA to promulgate new rules that allow air traffic control and law enforcement to identify and track all unmanned aircraft, a main priority of the agency. The repeal also appeases the Commercial Drone Alliance and other industry groups that have insisted repeal of Section 336 would be necessary for the unmanned traffic management (UTM) system, currently under development, to succeed.

Congress also imposed new requirements and restrictions on recreational unmanned aircraft pilots. The biggest change is that recreational pilots will now be required to carry certification that they have passed a basic aviation knowledge and safety exam. They also are prohibited from flying their unmanned aircraft more than 400 feet above ground level.

While the Act does not go so far as to require remote identification or tracking technologies for all model aircraft and drones, the repeal of Section 336, as well as the new rules and restrictions, certainly puts the squeeze on hobbyist groups. It is no surprise that model aircraft operators are less than enthused about the new rules.

However, following a handful of close calls between drones and larger aircraft and fear that drones will be used in a domestic terrorist attack, expectations that model aircraft associations can gain back their freedom in full should be tempered.

The harms that could be caused by rogue drones or irresponsible amateurs need to be seriously considered, but US aviation policy ought to focus on identifying and countering bad actors in the skies. The model aircraft community has established a strong safety record by rigorously policing its own through private standards and registration systems, yet enthusiasts will feel the brunt of these new rules.

In a welcome move, FAA Reauthorization takes the first step towards granting federal, state, and local aviation authorities and law enforcement officials the authority they currently lack to counter drones that may threaten large events, national monuments, or critical infrastructure. Congress also asks the FAA to come up with a plan to improve coordination among the federal authorities that create drone rules and the state and local law enforcement officials that are in better position to catch violators.

However, enacting blanket rules like the certification exam are a step in the wrong direction. They do little to stymie bad actors and place undue burdens that raise the costs of compliance for enthusiasts who play by the rules.

Photo credit: Penn State

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