In November, American voters chose a new direction for the federal government. One of many areas of federal policy desperately in need of a new course is the regulation of small commercial drones. In the not-so-distant future, drones delivering crucial medical equipment to the scene of a crash or lifesaving supplies to families stranded by natural disasters could be commonplace.
That is, if regulators don’t send such innovations the way of the dodo before they take flight.
Alarmed by largely hypothetical safety concerns, bureaucrats at the Federal Aviation Administration have spent years erecting regulatory barriers that have delayed that future. Until just a few months ago, it was FAA policy that commercial-drone activity of any kind was illegal unless the operator first applied for and received special permission in the form of a “Section 333” waiver. Such waivers took months to process.
Recently, the agency moved to permit basic commercial drone activity – low-level photography, for instance – provided that operators comply with extensive regulations spelled out in the Federal Aviation Regulations’ newly-instituted Part 107. More complex operations, such as flying at night, operating multiple drones simultaneously, or using onboard cameras and sensors to fly them farther than the naked eye can see, remain banned.
The FAA promises new rules authorizing such practices… someday. For now, entrepreneurs and innovators must continue to apply for waivers and wait months to learn if the government will let them fly. The FAA has set itself up as gatekeeper to the market, controlling the pace and direction of innovation and picking the players allowed to compete.
This approach is untenable. Companies have learned the hard way the consequences of government meddling.
Consider the cautionary tale of Free World Dialup, an early leader in Voice Over Internet Protocol services. FWD’s service languished for 18 months while the Federal Communications Commission considered whether the company should be subjected to government telecommunications regulations. By the time the FCC let FWD do business, a foreign company, Skype, had already developed a user base, raised capital, and ultimately won a foothold in the market.
For FWD, the government-imposed delay was costly. It no longer exists, while Skype has become a household name.
The same stakes apply in today’s drone industry. U.S. companies are already taking their development operations and their services abroad, lest they risk being left behind. Amazon has reached agreement with the British government to test parcel delivery service over populated areas in Britain, a concept utterly anathema to the FAA. As a result, the company’s first-ever drone delivery, completed this month, took place in the U.K. rather than the U.S.
At a White House summit this year, the FAA indicated it wants to bring Zipline’s lifesaving service to rural areas here at home, but only if the company applies for a waiver to the FAA’s Part 107 regulations – as if it wasn't this burdensome bureaucratic process that was driving companies abroad in the first place.
The FAA validly points to real safety concerns in developing and deploying drone technologies. Nobody wants to see aircraft collisions, peeping-toms, assaults, or any other illegal conduct involving drones. Consequently, some sensible regulations such as altitude restrictions are in order.
But the FAA has consistently overblown certain safety concerns surrounding drones to justify its glacial pace and micro-managerial regulations. And it has ignored pre-existing, technology-agnostic laws that address many of the purported harms and risks of drones.
What’s needed now is a wholesale reevaluation of the FAA’s regulatory approach to commercial drone operations. The new administration should restrain and refocus the FAA’s regulatory efforts to addressing real and truly unique harms that emerge in the course of market-driven innovation – provided that existing criminal, tort, property, product liability, and privacy laws do not already address them – rather than attempt to predict the future and regulate in advance.
President-elect Trump campaigned heavily on the need to create good jobs and improve infrastructure here at home. The commercial drone sector is a burgeoning multi-billion dollar field that could play an outsized role in both of these presidential priorities – if the government lets it. That’s the only way America will remain on the cutting edge.
Jason Snead is a policy analyst in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, where John-Michael Seibler is a legal fellow.
The views expressed by contributors are their own and are not the views of The Hill.