Commentary

FAA Needs to Adopt a Coherent Drone Policy

Although drones may conjure the image of high-tech military weapons, Unmanned Aerial Vehicles (UAVs) are finding more and more civilian applications. Unfortunately, the Federal Aviation Administration’s (FAA’s) sluggishness in formulating a coherent UAV regulatory policy has rendered most commercial applications illegal for the time being. While there is no doubt that UAVs are hazardous and that some basic regulations are needed to prevent tragic accidents, the FAA must establish a logical licensing regime which allows qualified applicants to take advantage of promising UAV technology.

Civilian uses for drones encompass a wide variety of activities including:

  • Cinematography and sport event filming;
  • Natural resource exploration;
  • Real estate photography;
  • Agricultural pesticide and water dispersal; and
  • Commercial food and package delivery.

The FAA has tried to classify UAVs as conventional aircraft, namely, to require operators to apply for a full “Special Airworthiness Certificate.” In March 2014, the National Transportation Safety Board (NTSB) temporarily stayed the agency’s power. The board’s decision in Huerta v. Pirker, rescinded a $10,000 fine against a model airplane operator who sold aerial photographs of the University of Virginia’s campus. The administrative judge ruled that the FAA must distinguish between model aircraft and conventional aircraft and that it had no statutory authority over the former. However, the Pirker ruling is far from conclusive; the FAA is currently appealing the case and continuing to bully prospective drone users.

The few exemptions the FAA has granted have been sporadic. Over the past nine years, the agency has only approved certificates to 13 civilian UAV operators. But even gaining approval to experiment with UAV technology is difficult. In a recent decision, San Diego Gas & Electric (SDG&E) became the first utility plant in the country to be approved for an experimental certificate. SDG&E plans on testing the ability of tiny UAVs (measuring 16 inches in diameter and weighing under a pound) to inspect electric and gas lines for problems. Even though these drones are virtually harmless and could potentially help the company to respond to fires and other emergencies more quickly, securing full operational approval will likely take years.

Perhaps the most arbitrary aspect of the FAA’s drone policy is the artificial distinction it draws between recreational and non-recreational use. Take academia for example. Despite the fact that the small drones used for academic research are barely distinguishable from remote controlled model airplanes, the FAA makes it much more difficult for climatology and meteorology researchers to collect data than for aviation enthusiasts to indulge their hobbies. The few regulations hobbyists must observe are relatively non-intrusive: they must fly their models below 400 feet, stay away from airports and be within eyesight.

Academic researchers, on the other hand, must apply for special FAA exemptions. The application process is long and byzantine, and is available only to professors from public universities. Scholars from private institutions of learning, including Stanford and Harvard, lack access to the same technology that adolescents currently enjoy.

Commercial photographers suffer from this same bizarre discrepancy. Although it is legal to take pictures of one’s property (assuming the 400-foot altitude limit is respected), these pictures, if sold, could result in fines for both the photographer and the buyer. Farmers face similar restrictions on drones used for crop fertilization.

The reasoning is that commercial drone use is self-propagating in a way that recreational use is not. Regulators fear that allowing UAVs to become profitable will lead to mass-proliferation-vastly exceeding the model airplane market-and to more dangerous behavior.

However, this logic is deeply flawed for two major reasons.

Researchers, photographers, farmers and businesses cannot afford to endanger lives through reckless drone use. Doing so would ruin their respective reputations and invite expensive lawsuits. Commercial operators have no reason to be less cautious than recreational users.

So what would sensible regulation look like going forward? A more moderate policy might include the following elements:

  • Requiring commercial UAV operators to purchase liability insurance;
  • Collapsing the artificial distinction between public (including law enforcement) and private-sector operators; and
  • Licensing UAVs according to model weight rather than purpose.

Drones are coming, whether regulators like them or not. If the FAA continues to zealously deny commercially viable drone use, it could create a black market of unlicensed, irresponsible operators. The agency’s best option is to mitigate the potential dangers of UAVs while acknowledging their legitimate role in an increasingly automated economy.