By Brooks Lindsay

This blog post follows up on an article I wrote for the Washington Journal of Law, Technology and Arts for the Spring 2015 issue. I submitted the article as a comment to the FAA on behalf of the UW College of Engineering. The article, titled “Drone Drain,” suggested the FAA be forward-looking with its draft unmanned aerial vehicle (UAS) rules. This blog post attempts to assess the FAA’s work since then.

Since the end of the comment period, the FAA created registration rules for drones weighing between .55 lbs and 55 lbs. This is an important step in the maturation of drone law because, like with cars, the identification of a drone after an accident is critical for victims to bring tort claims or the government to press charges for a misdemeanor or felony. If people don’t know who crashed a drone, then they can’t hold that registered person legally accountable. Without accountability, UAS pilots might feel emboldened to take risks without fear of legal consequences. Registration rules cut through this cycle and facilitate the maturation of a legal ecosystem for drones.

Registration also allows the government to educate users. “Registration gives us an opportunity to work with these users to operate their unmanned aircraft safely,” said U.S. Transportation Secretary Anthony Foxx. “I’m excited to welcome these new aviators into the culture of safety and responsibility that defines American innovation.” The FAA and Department of Transportation could conceivably send registered aviators regular emails aimed at informing them about piloting best practices, training resources, and the FAA’s rules.

Despite this progress, many still criticize the FAA for not quickly issuing rules during rule-making process. Despite issuing draft rules in the middle of 2015, the FAA has still not made those rules permanent. Most damningly, the FAA continues to ban all commercial operations of drones (allowing only [possibly less experienced] recreational drone operators to fly above American soil). It has issued exemptions on an ad hoc basis to some companies, but this is not sustainable at scale. Most people are just ignoring the law.

As a result, one Oregon Congressman, Earl Blumenauer, recently introduced legislation to create an interim framework of guidelines for the FAA. It would legalize all commercial operations of drones weighing 4.4 lbs or less (the majority) and create limited operating requirements on these micro UAS. This legislation is in line with what the FAA has already proposed for consideration – lighter rules on micro UAS weighing less than 1 pound. The legislation would expedite the process so that micro UAS are treated in isolation, with rules for this class of UAS being immediately considered and passed, instead of trying to create permanent rules for all classes of UAS all at once. It would replace for this class any requirement that UAS pilots acquire an aircraft pilot’s license (a disproportionate burden). And it would replace roughly a dozen draft FAA requirements for this class with just five. Drones would need to be operated at:

1. less than 400 feet above ground level;
2. at an airspeed of not greater than 40 knots;
3. within the visual line of sight of the operator;
4. during daylight; and
5. at least 5 statute miles from the geographic center of an airport…

Many think that this makes good sense. John Goglia, an aviation safety analyst and Forbes op-ed writer, had the following to say:

This bill is extremely important in changing the safety culture for these small drone operators. Reasonable rules encourage voluntary compliance which has always been a cornerstone of aviation safety.  Instead of being forced to operate outside the safety system, these operators could come out of the shadows and join the larger community of aviation operators.

The other big recent development is the FAA reauthorization bill. Congress passed this bill without debate and put it in front of President Obama for signature. It has received mixed reviews with regard to its drone-related rules. For example, it continues the unsustainable exemption process for the ban on commercial drone flights. And it continues to emphasize that operators must keep their drone within line of sight, instead of creating a path for operators like Amazon to deliver products with drones (something that can likely be done safely with the proper framework).

Ultimately, the reauthorization bill leaves the FAA continually struggling to find itself on the progressive side of the UAS issue. Some might say this is as it should be (that the FAA should be risk averse), but the FAA should balance risks and rewards, ensuring reasonable safety measures, while at the same time allowing America’s drone industry to flourish. At least for drones less than 4.4 lbs., the rewards of forward-looking rules are great, and the risks are relatively low. Congressman Blumenauer’s bill seems to strike this balance. In lieu of FAA action, the passage of this bill may be a critical next step.

Image source: Wikipedia.