The budding commercial drone industry is transforming our world and our way of life. Technology has surged ahead, and what used to be considered toys are now tools of public agencies, law enforcement and industry. A recent PricewaterhouseCoopers report estimated the global market value of drones at over $127 billion — creating jobs, boosting the economy, and delivering substantial benefits to the American people.
Since the FAA’s Part 107 for the first time broadly authorized commercial drone operation in the U.S. last year, commercial drone use is expanding exponentially. With the right rules in place, the marketplace is positioned to blossom.
Drones today enhance disaster response, inspection and newsgathering capabilities. The possibilities for tomorrow’s drone applications are limited only by our imagination. Technology exists now to design “highways in the sky” enabling drones to provide communications infrastructure, spray crops, deliver packages and provide security — in the same airspace and at the same time as helicopters and other manned aircraft, over people and structures, and side-by-side with hobbyist drones.
But to integrate the airspace properly, and in a way that is safe and secure, basic “rules of the road” are necessary. Just like the highways we traverse every day in cars and trucks, it is critical that all vehicles navigating “highways in the sky” participate in the broader drone ecosystem. Policy and regulations defining these rules of the road, combined with technology able to assign drones a “license plate,” are a necessary step to expand commercial drone operations.
The FAA established the UAS ID and Tracking Aviation Rulemaking Committee (the ARC) in May 2017 to consider some of these “rules of the road” and technological solutions. The ARC consisted of stakeholders from the model aircraft, commercial drone, manned aviation and national security communities. The group met over the course of several months, and the FAA has published the group’s report. The report lacked consensus on the critical issue of threshold application, as the report controversially recommended (whether explicitly or by design) that the FAA carve out model aircraft from the remote ID and tracking requirement.
Exempting model aircraft from the requirement renders the requirement irrelevant. The numbers bear this out. As of early September 2017, the FAA had logged approximately 700,000 model aircraft registrations, and the FAA estimated that there were 1.1 million hobbyist drones in 2016. While the potential for growth is huge, the commercial drone market today remains a fraction of the hobbyist drone industry; in that same timeframe, there were approximately 79,000 (total) commercial UAS registered with the FAA.
Over the last few years, we’ve seen headlines about near misses between drones and manned aircraft, or drones flying where they shouldn’t be. The worry is careless, clueless or criminal use of drones. Many of the “careless” and “clueless” tend to be hobbyist fliers, so exempting them from a requirement makes no sense at all.
A model aircraft exemption is also difficult to implement. Whether a vehicle legally qualifies as a model aircraft depends on the intent of the operator, not on the vehicle’s capabilities or design. Many of the same vehicles flown recreationally are also flown for commercial or other purposes, so it is impossible for a law enforcement officer to tell offhand whether it qualifies as a model aircraft or an aircraft authorized by FAA rules.
An approach giving preferential treatment to hobbyists has clear and adverse implications for the safety and efficiency of the National Airspace System, homeland security, public safety and the efficacy of future Unmanned Aircraft Systems Traffic Management systems. Adoption of this approach would also slow regulatory approvals for commercial drones, hurting the commercial drone marketplace just as the industry is bringing substantial economic benefit to the nation.
Proponents of a model aircraft carve-out point out that hobbyists have been flying model aircraft safely for decades. While this is true, it is also irrelevant. Times have changed. As technology has improved exponentially over the last few years and the commercial drone industry has taken to the sky, hobbyists are no longer flying alone. For the new drone economy to truly take off for society’s benefit, we all need to abide by some low-cost “rules of the road.”
Any remote ID solution must be simple to implement, sustainable over time and scalable across the industry. Many industry stakeholders represented on the UAS ID and Tracking ARC, including the Commercial Drone Alliance, therefore supported a common sense, weight-based threshold for remote ID and tracking applicability.
This approach is simple and comprehensive, encompassing the majority of drones except for the very small and unsophisticated.
It is sustainable over time, future-proofing new rules by accommodating technological development and enabling the continued growth of the new and exciting drone industry. This approach scales across the industry, building upon the existing and familiar drone registration database. Finally, the requirement can be implemented with little to no burden on the operator.
To be sure, the ARC report was merely a set of recommendations. The next step is for the FAA, with the assistance of national security agencies, to review the recommendations and propose a rule. Legislation is also necessary to enable the FAA to regulate hobbyist flight; Section 336 of the FAA Modernization and Reform Act, which carves out qualifying model aircraft from regulation entirely, is outdated. Lawmakers must eliminate, and at the very least amend, Section 336 in order to enable the FAA to require positive ID and tracking in a sensible way.
It is critical to consider the benefits of commercial drone integration, in addition to safety and security, as the FAA decides whether to actually scope out model aircraft from a remote identification and tracking requirement. The future of the commercial drone industry in the United States depends on it.
Lisa Ellman is a partner at Hogan Lovells US LLP and co-executive director of the Commercial Drone Alliance.