Operation and Certification of Small Unmanned Aircraft Systems

The Federal Aviation Administration (FAA) is proposing the adoption of specific rules to integrate unmanned aircraft systems (UASs) into the National Airspace System. The proposed rules would, among other things, prohibit small unmanned aircraft from conducting external load operations (i.e., deliveries); prohibit the operation of small unmanned aircraft over people not involved in the operation; prohibit the use of see-and-avoid responsibilities through technological means, such as onboard cameras; and prohibit operation outside of the hours of official sunrise and sunset.

In a public interest comment published by the Mercatus Center at George Mason University, technology policy scholars Eli Dourado, Ryan Hagemann, and Adam Thierer explain why the FAA’s proposed rules fail to consider all of the benefits of UASs and are an exercise in overly precautionary thinking. Rather than worry about hypothetical harms with relatively low risk, government policy should encourage what is known as “permissionless innovation.” While other countries around the world are already benefiting from unmanned aircraft technology, the FAA’s proposed rules will not allow such innovation to flourish in this country, to the detriment of consumers and the American economy.

Key Findings 

The FAA does not adequately consider all of the benefits of small UAS technology in accordance with Executive Order 12866:

• The FAA states that the flight characteristics of aircraft carrying external loads pose additional risks. However, the FAA supplies no discussion of the benefits of allowing small unmanned aircraft to conduct external-load operations.
• The FAA has not considered the benefits of allowing UASs to operate beyond line-of-sight, only the risks. Technologies are being developed and deployed that address the FAA’s concerns.
• The FAA does not consider the benefits of allowing fully or partially autonomous UASs to operate on the basis of a single operator for multiple aircraft. Allowing such a practice would drastically lower the cost of operating a large fleet of unmanned aircraft.
• The FAA does not consider the benefits of allowing UAS operations over persons not involved in the operation. Many creative and valuable uses of UASs will likely develop in urban areas, where greater density enables higher benefits from drone-based transportation of goods.

Additionally, the FAA fails to provide clear guidance on UAS activities that have an academic, noncommercial, or humanitarian nature.

Recommendations

The FAA’s proposal not to require UAS operators to obtain a commercial pilot certificate and its determination that small UASs should not be subject to airworthiness certification are both sound policy choices. But there are further improvements that must be made to make the FAA’s proposal workable:

• Conduct proper benefit-cost analysis. The FAA should consider the benefits of external load operations, operation beyond line-of-sight, multiple craft operation, operation over noninvolved persons, and nighttime operation. The benefits of these options exceed the costs that the FAA mentions.
• Pursue legal remedies in lieu of prohibitions. The FAA should consider how longstanding legal remedies in tort law, such as strict liability, negligence, design defects law, failure to warn, and breach of warranty can address concerns that the FAA is seeking to alleviate through prohibitions.
• Adopt rules more quickly. The FAA has a statutory obligation to permanently integrate civil UASs into the airspace by September 30, 2015, pursuant to § 332. The FAA is likely not moving fast enough to meet this obligation.

• Consider the effect of rules on the economy. The FAA must carefully consider the potential effect of UAS restrictions on the US economy. If it does not, innovation and technological advancement in the commercial UAS space will find a home elsewhere.