Pros & Cons of Trump’s Drone Expansion Program
Jonathan Rupprecht, a leading aviation lawyer who specializes in drones, weighs in with pros and cons of President Trump's plan to expand drone use.
The United States is far behind other countries when it comes to integrating commercial drones into the airspace. But last week President Trump and Secretary of Transportation Elaine Chao announced the Unmanned Aircraft Systems Integration Pilot Program in hopes of fixing that by jump-starting drone flights beyond the visual line of sight (BVLOS), nighttime operations and flights over people.
In 2016, the Obama administration opened the skies to small drones for education, research and routine commercial use, but severe restrictions remained. This new program will look to build upon that work by allowing national and local regulators figure out the best way to manage commercial drone use.
The Federal Aviation Administration (FAA) estimates by 2021 commercial drones will grow tenfold to about 442,000. And in less than a decade, the potential economic benefit of integrating commercial drones into the nation’s airspace is estimated to equal up to $82 billion and create up to 100,000 jobs, according to a recent study by AUVSI. The White House said this new program aims to remove the barriers that could restrict the commercial drone industry from taking off in the US.
This test program, which will end in three years unless it’s expanded by the Department of Transportation (DOT), could also allow drone flights at up to 400 feet with the goal of approving at least five pilot projects.
The DOT said in a statement, “The pilot program will evaluate a variety of operational concepts, including night operations, flights over people, flights beyond the pilot’s line of sight, package delivery, detect-and-avoid technologies, counter-UAS security operations, and the reliability and security of data links between pilot and aircraft. Industries that could see immediate opportunities from the program include commerce, photography, emergency management, precision agriculture, and infrastructure inspections and monitoring.”
Amazon, Flirtey, Google, UPS and other companies looking to use commercial drones to enhance their business certainly see this test program as welcome news. But not everyone is happy with the pilot program. Here’s a statement from Congressman Jason Evans, who proposed the Drone Innovation Act, which wants to clarify how states and local governments can regulate commercial drones.
I’m pleased to see the President take this important action today recognizing the significant role that drones have to play in a 21st century economy. As this technology continues to grow and develop, we have to work to successfully incorporate drone use while keeping in mind the specific needs of each of our local communities. That’s exactly what my Drone Innovation Act does. While this pilot program recognizes some of the principles I’ve advocated for, unfortunately, it doesn’t go far enough in protecting local control and the rights to privacy and property. As we move forward, the next step is to ensure that our communities cannot only help expand the beneficial uses of drones, but that they also have the ability to take effective action when it comes to putting in place reasonable limitations on public use. I look forward to continuing to work alongside the White House and Secretary Chao to see that these foundational principles and rights are upheld.
To make better sense of the Unmanned Aircraft Systems Integration Pilot Program, Jonathan Rupprecht, a leading aviation lawyer who focuses heavily on drones, wrote an in-depth piece on the matter. He included a list of pros and cons and a list of unanswered questions, which we’ve re-printed below:
Pros of Unmanned Aircraft Systems Integration Pilot Program
Support from on high
President Trump and Secretary both appear to be extremely supportive of drones for creating jobs. If the FAA starts dragging their feet, President Trump and Secretary Chao are going to ask questions.
Allowing the states, local, and tribal governments to allow some of these pilot programs to go on might help slow down the current proliferation of local drone laws. Let’s say you have a local government wanting to create a drone law. The local drone flyers can say, “Hold up there buddy. Go talk to the FAA as they have a pilot program for that.” Yes, we’ll always have rogue governments but I think more will be willing to participate and while they are participating, the FAA can educate the local governments on preemption, etc.
Force a discussion of a difficult topic
It will force law enforcement and those favoring preemption all the way to the blade of grass to come up with some workable ideas where you can actually enforce the laws by catching the lawbreaker and throwing him in jail/fining but at the same time not violate Article VI of the
Both sides have points and neither really knows how they work together so they just entrench themselves in their position and lob arguments at the other side without considering the legitimacy of the other side’s arguments.
President Trump holds a drone as George Mathew, CEO of Kespry, explains how it works during the American Leadership in Emerging Technology Event. (Credit: Getty Images)
Green light for complex operations
If you are wanting to do drone operations beyond the normal part 107, this appears that the FAA will be moving the direction to allow more of the complex and difficult types of operations many of us have been wanting.
It might get SOMETHING done
Let’s face it. Congress will most likely not pass much in this area anytime soon. They are too busy fighting over ATC privatization. Maybe some language will get slipped into the next FAA reauthorization but who knows. If you look at the list of proposed drone bills, only 2 of them ended up becoming law. Congress isn’t going to be doing anything anytime soon. Drones are a low priority.
Cons of Unmanned Aircraft Systems Integration Pilot Program
“[P]artnerships could give local officials an opportunity to help to manage local operations subject to FAA safety oversight.” Let’s say one of these local partnerships creates some laws and the first guy gets arrested. The prosecutor files charges. Defense counters saying that the law is unlawful because the local law is preempted by federal law under Article 6 of the Constitution. Now what? We have to battle it out in the courts. Courts are going to look at the intent of CONGRESS when the law was created, not the intent of President Trump years after the law was created to determine whether field or conflict preemption applies. I think the judge in the Singer v. City of Newton gave the FAA WAYYY too much deference by looking at the FAA letter to state and local governments. What happens if the judge strikes down the law as illegal? How does that undermine this whole pilot program?
Creates more operational headaches for businesses
This has the potential to cause problems by creating a massive patchwork of laws. It doesn’t allow businesses to be legal AND competitive. Let’s face it. We’ve all seen this for the last couple of years with the FAA’s horrible enforcement action record. Unless there IS actual enforcement of the laws, the ones that try to be lawful will be punished because they will spend time and money trying to comply with the laws while their illegal competitor will pick up more business with their lower rates.
Didn’t fix FAA enforcement problems
Why didn’t this memo go further and tell the FAA to specifically change its enforcement philosophy on drones which is extremely relaxed. Based upon information from the FAA, they have only prosecuted since 2015 a whopping total of 48 drone flyers. Furthermore, why didn’t the memo direct the FAA to go after the companies which repeatedly hire illegal drone operators? They play into this whole thing by funding this black market by picking the lowest bidding operator (which many times is the illegal operator) while not really caring about if the operations are legal are not because they think they are insulated from a lot of the liability by the sub-contractor relationship. The FAA has the ability to go after the hiring company in certain scenarios.
Problems I See/ Questions Left Unanswered
Rulemaking a long ways away?
The data gathered from this program is going to be used for future rulemaking actions. Does that mean the over people, night, beyond line of sight proposed rulemakings are all delayed until the conclusion of this pilot program in 3 years?
What is the benefit for doing this?
Private companies can already go the waiver, exemption, and authorization route by themselves. What is the benefit for them to partner with state and local governments? Furthermore, one can argue there is a downside since many there are state and local sunshine laws that could potentially cause problems for confidential/proprietary materials created to get the program approved. In other words, companies, consultants, and attorneys will be hesitant to not have their hard work stolen by their competitors using a sunshine law or some state equivalent of state FOIA.
How do you prevent special interests from using this opportunity to lobby local governments to create a regulatory created need for their services? Not only could we have a patchwork of laws, we could have a patchwork of services/equipment requirements/etc. causing more problems for businesses.
Do the partnerships get treated the same as the non-partnership guys get treated? In other words, is the FAA going to treat two similarly situated individuals differently? If so, why do the partnership? If not, why do the partnerships get an “easy pass?”
Drones are the “canary in the coal mine” for manned aircraft
Who is to say this is going to stop at drones? Once states and local governments start feeling like they can legitimately regulate aviation related things close to the ground, and especially after they start getting a taste of the revenue they can maybe generate with drones, why stop there and go to the deeper pockets with manned aviation? Helicopter and crop dusters both operate in the same low altitudes as drones. Why can’t they also be regulated? Furthermore, this has the potential to erode preemption which manned and unmanned both enjoy. I believe the FAA already has a pilot program going on right now with local government and Santa Monica airport. O wait. My bad. I did not just go there………. I guess that isn’t a pilot program the manned community would want.
Outdated aviation regulations and we need to innovate?
Some of the material keeps referencing old aviation regulations and the need to innovate? See White House Fact Sheet below saying, “America’s regulatory framework for aviation is outdated[.]” Part 107 went into effect August 29, 2016. How is that outdated? What this sounds like is whoever is doing the policy has an outdated view of the law. Everyone keeps talking about the law but no one really knows it or how it is in effect. I had a contact working for an elected official up in D.C. call me up to ask for the “real deal” on what was going on with waivers. The more I dug down, it sounded like the lobbyists/policy makers who were talking to the contact had an incorrect understanding of the current regulatory environment.
We can do most of the stuff without a pilot program
All the things being mentioned as a need for this pilot program (beyond line of sight, night flying over people, etc.) can be done under Part 107 or with a Part 107 waiver except for beyond visual line of sight package delivery. Why do we need this program to innovate what we already have? Wouldn’t it be better to just tell the FAA to start getting these waivers going ASAP without bringing in this whole big local/state/federal preemption problem?
Frustrated “innovators” are going to end up right back where they started
The FAA and DOT are going to have to work within their existing regulatory framework. This executive memo didn’t somehow undo law. This means anyone looking to “innovate” and is frustrated with the current exemption, waiver, or authorization process is going to realize that the memo, and law, will put them right back at where they started. It doesn’t somehow create a completely new alternative system of making everything lawful. The executive memo says using “existing authorities to grant exceptions, exemptions, authorizations, and waivers from FAA regulations[.]”
What are your thoughts on the Unmanned Aircraft Systems Integration Pilot Program? Let us know in the comments.