Enacting Sensible Drone Regulation on a Federal and Local Level

The FAA has and continues to define what it means to legally operate a drone in the United States, but the authors of a recent article laid out why the agency’s position in doing so might need to be reconsidered. Jason Snead and John-Michael Seibler from the Heritage Foundation showcased how and why states and localities are fully equipped to regulate local drone operations through the enforcement of existing laws. Their article, Seattle Case Shows Why Drone Regulation Should Be Local, Not Federal, is a great look at the differences and distinctions between federal and state law when it comes to drone regulation, and illustrates where shortcomings can and will arise.

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John-Michael Seibler

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Jason Snead

After making such a great case for a more practical approach to drone regulation, there were a number of topics that came to mind around how such an approach could and would work. I got in touch with the authors of the article to discuss these issues, and the two answered every question I threw out to them.

Jeremiah Karpowicz: What can you tell us about the work you do at the Heritage Foundation? How much of the Foundation’s work is focused on drone technology?

Jason Snead and John-Michael Seibler: We both work in the Meese Center for Legal and Judicial Studies, which focuses primarily on issues surrounding the law, the Constitution, and the federal courts. We both work on overregulation and overcriminalization, and in 2015 when we began looking at the FAA’s decision to push forward with a recreational drone-owners’ registry, it became clear that the agency’s treatment of drones was an example of both. We started with a narrow critique of the recreational registry as running afoul of section 336 of the 2012 Modernization Act and a misuse of the “good cause” exemption under the Administrative Procedure Act, and have since broadened our work. Now we are looking at airspace property rights issues and federal preemption in the drone space.

Tell us a little bit about your personal interest in UAVs.

We both think the technology will be revolutionary in multiple arenas – package delivery and aerial photography being just the tip of the iceberg. I (Jason) own a small drone and occasionally get the chance to fly it, but the flight restrictions in the DC metropolitan area really make the hobby a non-starter here, unless you are content to fly indoors.

I got in touch with you because of your excellent article, but before we get into that I wanted to get a sense of where you’re coming from around these issues. If we could wave a magic wand and take us back to 2012 when Congress made the safe integration of drones in the national airspace a top priority, what do you believe would have made the most sense in terms of making that happen from a policy perspective?

Using Section 333 to grant broad waivers by category of drone, or by type of operation, would have helped to expedite commercial drone activity. If you read the 2012 statute, it’s clear that Congress wanted the FAA to facilitate commercial operations as quickly as possible. The rulemaking deadlines in that law are aggressive, but Congress seems not to have wanted industry to have to wait even that long – hence the Section 333 waiver authority. The FAA interpreted Section 333 narrowly, granting waivers only on a case-by-case basis. If it had taken a broader approach, operators could have avoided the months-long delays that plagued the 333 application process. And of course, the agency could still have put in place reasonable restrictions on operations, such as constraining drones to Class G airspace, or barring them from flying at night.

What kind of complications have you seen as a result of the differences in FAA regulation between commercial and recreational operation?

One of the most significant complications is just where the agency draws the line between recreational and commercial conduct. It may seem straightforward, but in practice, the distinction between the two has been blurred. In several cases, the FAA has pursued enforcement actions against hobby fliers who posted videos to YouTube, alleging that the minimal advertising revenue YouTube generates can retroactively transform a flight from recreational to commercial activity. More recently, the agency has hinted that some hobbyists may actually be required to comply with Part 107 depending on whether they join a community based organization like the Academy of Model Aeronautics – but fliers have no definition of what constitutes a CBO, leaving many in the lurch.

What did Part 107 tell you about how things have progressed or changed in terms of how the FAA views commercial operations, and even about the approach of the FAA itself?

Part 107 tells us a few things. First, the FAA is having a great deal of difficulty meeting either internal or Congressionally-mandated deadlines for rulemaking. Part 107 came nearly a year late, and a regulation allowing for flights over people was promised by the end of 2016, but that has yet to materialize. Second, the FAA seems absolutely committed to restricting commercial activity to the pace of regulation, even while candidly acknowledging that the regulatory process is far slower than the rate of innovation.

Have you seen Part 107 open up commercial opportunities? Or do you find many are still waiting for such legal logistics to get further sorted out?

Part 107 has certainly opened up commercial opportunities for drone operators, but it is hardly the “grand opening of the skies” the FAA has made it out to be. In reality, it is an incremental step forward from the Section 333 process. There are still a great many restrictions on operations – no night flying and no flying beyond line of sight, for example. So, Part 107 has finally normalized access to the market, but it has only done so for a narrow set of operations, and only if operators comply with fairly rigorous FAA requirements and submit to a TSA background check. More complex operations, of the sort that could revolutionize package delivery or allow drones to engage in life saving operations, are still banned. As a result, we still see companies doing significant testing and investment abroad rather than here at home.

Focusing in on your article, I thought it provided readers with an amazing example of how effective local and existing regulation can be, as opposed to federal and drone-specific laws. Do you think some members of the public and even the drone industry itself have been trained to look to the FAA for guidelines, even as this is proof of how unnecessary that is?

When people think of aviation regulations, they naturally think of the FAA. This is a consequence of the fact that, for nearly a century, “aviation” and “manned aviation” have been essentially synonymous. But drones represent a paradigm shift – we aren’t talking about manned operations that are virtually exclusively at high altitudes, we are talking about unmanned operations of much smaller craft that are expected to fly almost exclusively at low altitudes, in airspace right above our backyards. At those low altitudes, it is not the FAA, but local zoning boards, town councils, and local police departments that have the most experience and awareness of the local terrain. This is not to say the FAA has no role to play in drone regulation, but rather to say that its role is going to be significantly more limited compared to the role the agency plays in manned aviation.

Without getting specific, do local authorities have enough laws at their disposal to effectively deal with issues created by or caused by drones, which exclude any drone-specific laws or even what the FAA has mandated?

Local authorities have access to a wide variety of technology-agnostic statutes that will enable them to deal with reckless operators or bad actors. Even the FAA has recognized that reckless endangerment, assault and battery, and peeping tom laws are generally applicable to someone using a drone to commit the crime in question. Some states and localities have moved to criminalize certain conduct when done via drone, but we caution against this approach, as it results in needless duplication of the criminal law, which can result in charge-stacking. States and localities should be looking to the harm caused by technology, not the technology itself. Where and when drones cause unique harms, drone-specific laws may be called for. The same is true at the federal level.

One of my favorite lines in that article stated that drones “only offer a new way to commit old crimes.” This is something that can be pushed forward as well since drone technology will continue to change and evolve well past any drone-specific laws that are created in the short term, don’t you think?

Absolutely. The pace of technological change is rapid and accelerating. If lawmakers write laws that are specific to drones as we understand and envision them today, those laws risk rapid obsolescence. We see this happen in other contexts, where criminal law becomes outmoded but remains on the books.

 

Regardless of the specific issue or complaint, the FAA will always frame their approach and action in terms of safety. FAA officials will often reply to complaints about their speed or caution by saying that if a drone is the cause of a major incident, everyone will look to and blame the FAA. Is that a fair justification for the approach they’ve taken?

We certainly understand the safety concerns of the FAA. The agency is right to point proudly to the safety culture and record they help to maintain in manned aviation. Unfortunately, when it comes to drones, officials have been too reliant on worst-case scenarios when justifying their policy positions. The fact is, there has never been a collision between a manned jet and a drone, and pilot sightings of UAS are unreliable, to say the least. It is also worth pointing out that a bad actor intent on using a drone to commit a crime will not be stopped or deterred by any existing FAA regulation any more than gun laws deter gangs from using firearms. Safety is certainly an important consideration, but so too is the cost to society that comes from restricting technological advancement and losing out on the benefits that come with it.

When someone causes an accident with a car, you very rarely hear anyone claim that the Department of Transportation created a safety issue by issuing that person a driver’s license. Will we someday get to that same place with drones?

This is an example of one of the many fundamental policy questions that remain to be resolved: who should be the primary authority over operations in low-altitude airspace, the states, or the federal government? At the moment the FAA has staked out a fairly aggressive posture, claiming to preempt virtually the entire field of drone law and regulation. Whether that position is tenable is an open question. The agency has limited resources and a big country to cover, so it would make sense to keep more responsibility and accountability for low-altitude rule-making and enforcement at the local level.

How do you think the development of standards around how drones should be operated in certain industries should factor into regulation?

The short answer is, industry standards and best practices have a significant role to play, particularly as we live in a world where the pace of technological change is accelerating. Regulators cannot keep pace, and will only fall further behind in the future. Consequently, government officials need to be prepared to move away from prescriptive regulations towards flexible performance-based standards that allow for new developments while guaranteeing a minimum level of safety. However, government regulation is not the only means of ensuring safety. The tort system affords people the ability to sue for damages if drones crash into their property or cause them harm. And no drone company wants to suffer the damage to its reputation that would come from rolling out an immature and error-prone system, especially since prominent early failures risk turning off the public to unfamiliar new technologies.

Your piece mentions that the FAA has defined a drone as an “aircraft” in the same way they define a 747 as an aircraft. Few would argue they’re actually the same, but I imagine advocates for that position would argue the similarities are in terms of airspace. At certain times, that drone and 747 are in the same airspace, and during that time they’re both “aircraft” in the sense that a collision could cause a major problem. Do you think that interpretation justifies that “aircraft” definition?

The fact is, these technologies are different, and we need regulatory and legal schemes that recognize that difference if the drone industry is to achieve its full potential. The FAA argues that if something flies, it is a plane. But if we accept that, we must also accept the argument that paper airplanes, and perhaps even baseballs, are aircraft for the purposes of federal law, and subject to the FARs. This is clearly absurd. Defining drones as “aircraft” subjects them to an array of laws and regulations written for manned aircraft, and the result, as we have seen, is a morass of inconsistent and sometimes contradictory requirements, enforced through arbitrary rulemaking, and backed up by severe criminal penalties. For example, the FAA maintains that it is a crime to shoot down a drone, citing section 32 of Title 18, which carries a 20 year prison sentence. Does that make sense in the drone context?

One of the benefits of FAA jurisdiction over drone operation is that operators will not be dealing with a patchwork of regulation that changes from one city/municipality/state to another. Although even with the FAA exerting their influence, that’s already happening isn’t it?

That certainly is, although we do not think a so-called patchwork of regulation is a bad things. Consider speed limits – nobody bats an eye when states or localities set speed limits that change when you cross the border from one jurisdiction to the next. This certainly has not inhibited the flow of interstate commerce, and there is no case to be made that the Department of Transportation needs to assign speed limits to every single road in America. By the same token, localities are best situated to address the sort of concerns that are bound to arise as drones operate in low-altitude airspace above private property. One-size-fits-all is seldom the best approach.

Is it possible to change the direction of regulation? Ultimately, do you think we’ll need that many more examples like the one in Seattle to help compel the FAA to focus more on integration? Or will something much more dramatic need to happen?

If we wait for something more serious to happen, we risk overreacting in the heat of the moment. It would be better to take the time now to develop a well thought out approach to drones, one that allows for industry innovation, respects the sovereignty of states and the interests of local governments and private landowners, and grants the federal government sufficient regulatory power to ensure safety in the national airspace. Congress has just such an opportunity, in the form of the upcoming FAA reauthorization.

What would you say to someone who told you they want to fight for and help enact drone policy that makes sense in 2017 and beyond? What’s the best thing they can do to be part of that effort?

The best thing they could do is let their lawmakers know that they care about the issue, and that they care about getting the policy and regulatory framework right. The FAA can only do what Congress lets it do, and if legislators know that their citizens care about who owns the airspace directly above their own backyards, we are more likely to get the kind of forward-thinking policy America deserves.

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