A Nov. 29 hearing on Capitol Hill shed much-needed light on the way the Federal Aviation Administration is running a new pilot program intended to bring state and local governments into the regulatory fold.
The new pilot program was created by President Donald Trump to speed up the integration of unmanned aircraft systems (also known as drones) into U.S. airspace.
Drones have exploded in popularity in recent years, as entrepreneurs and innovators continue to find novel and clever uses for this emerging technology.
Residents of Florida and Puerto Rico can attest to the revolutionary potential of drones firsthand. After hurricanes swept through both areas, drones were deployed for search and rescue missions, to help restore critical services, and to aid in damage and insurance assessment.
FAA Administrator Michael Huerta rightly called this moment “a landmark in the evolution of drone usage in this country.”
That moment was a long time coming. For years, drone regulation in the U.S. has been slow and overly centralized, prompting concerns that America is losing the lead in a critical technology field.
It was only in 2014 that the FAA began allowing commercial drone operations—but then only if companies applied for and received a special exemption, known as a “Section 333” waiver.
In 2016, the agency promulgated its “Part 107” regulations that generally permit a very limited category of commercial drone flights. Under these rules, flights at night, over people, or beyond visual line of sight remain barred without a waiver.
Though the agency has granted a number of these exemptions—Earl Lawrence, executive director of the UAS Integration Office, testified at the Nov. 29 hearing that night flying is now “almost commonplace”—substantial regulatory delays persist.
At the same hearing, William Ball of the Southern Company, an electric utility firm, reported that he had been waiting more than a year for a waiver to permit drone inspection of transmission lines.
Meanwhile, a follow-on rule to Part 107 that would permit flight over people has been held up for a year.
At the same time, confusion has reigned over the question of just what authority states and localities have to regulate drone flights that take place in low-altitude airspace just above—or among—homes, schools, and jails.
The vast majority of states and countless cities have adopted drone laws of varying forms, as they seek to develop responsive and robust solutions to unique local concerns.
But in 2015, the FAA released a fact sheet claiming that most state drone laws are pre-empted by federal statute. If that interpretation is upheld, only federal regulators could adopt rules governing drone flights, leaving local communities powerless to police the many issues that arise as drones fly in low-altitude airspace.
That position has been cheered by trade and industry groups intent on ensuring that full federal pre-emption prevails. In October, Association for Unmanned Vehicle Systems International President Brian Wynne bluntly stated his group’s position: “The way we do this in Topeka, Kansas, has got to be the same as it is in D.C.”
It is clear that there are strong federal interests in the drone space, such as ensuring the safety of manned aviation, including military pilots conducting low-altitude training flights, and protecting critical infrastructure.
But for flights near to the ground, there are equally strong local interests, such as nuisance, trespass, and privacy concerns, that must be accounted for.
Expecting a one-size-fits-all regulatory approach to adequately and responsively address the particular conditions in every jurisdiction in the country is unreasonable. Such an approach risks swamping the FAA and further eroding American technological leadership in the drone arena.
Fortunately, a consensus seems to be emerging among policymakers that a federalism-based approach is the best path forward.
Earlier this year, lawmakers in both the House and Senate introduced legislation seeking to guarantee that states and localities have the authority to impose reasonable time, manner, and place restrictions on drone flights up to 200 feet above the ground.
This authority would permit communities to set basic rules like speed limits, restrict flights over local events, and protect privacy and property rights against drone intrusions, without interfering with the FAA’s mission to ensure the safe and efficient use of the nation’s airspace.
In October, Trump signed a presidential memorandum establishing a three-year pilot program to test large-scale drone operations under FAA supervision, as well as “evaluate various models of State, local, and tribal government involvement in the development and enforcement of federal regulations for [unmanned aircraft systems] operations.”
At the Nov. 29 hearing, FAA Deputy Administrator Daniel Elwell made clear that the FAA would permit local regulation of drone flights:
As we go forward in the pilot project … we need to balance the needs of the localities with our responsibility to operate safely and manage the navigable airspace. The pilot program is going to provide an opportunity for us to work with the local jurisdictions to understand their needs in managing their areas of responsibility, [including] of course, public safety, privacy, trespass … within the low-level airspace … and we’ll work with the communities in setting the time, place, and manner restrictions to meet their needs and not disrupt the safe and efficient use of the airspace.
Elwell then indicated that these restrictions would ultimately be “enacted by the local government by legislation or regulation [and] would be monitored and enforced locally, and FAA would just continue to enforce any federal law.”
This approach is a major step toward developing a safe, competitive, and accountable drone industry. Doing so will require an approach rooted in cooperative federalism, which leverages the unique competencies of all levels of government—federal, state, and local—to arrive at an optimal outcome.
Lawmakers in the states, in Congress, and now regulators in the Trump administration all seem to be in agreement.
Much work remains to be done, but perhaps drone regulation in the U.S. is finally on the right path.
