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For all the talk of thousands of delivery drones filling the skies, we're a long ways off from that vision becoming real. Would-be pioneers such as Amazon.com must first contend with the regulatory muscle of the Federal Aviation Administration.
For years, FAA did little to interfere with hobbyists’ model aircraft, causing commercial drone operators to assume they would obtain a similar pass for low-altitude flights with small craft. No such luck: the FAA has made it abundantly clear that it considers all unmanned aircraft systems (UAS), regardless of size, range or purpose, to be within its jurisdiction.
Those believing they could fly under FAA’s radar got a temporary boost in 2011, when a National Safety Transportation Board administrative law judge ruled that the agency lacked the authority to fine an aerial photographer $10,000 for piloting an unauthorized drone over the University of Virginia. Raphael Pirker was shooting footage to be used in a commercial for UVA’s medical school. According to the FAA, he engaged in careless and reckless activity by flying his camera drone within 100 feet of a helipad, through a pedestrian tunnel, and close enough to people that they had to dodge out of the way.
The full four-member NTSB overturned the judge’s ruling, however, confirming FAA’s oversight of unmanned aircraft systems. The fact that FAA had chosen not to regulate model airplanes in the past didn’t mean the agency couldn’t do so at its pleasure, the board said, sending the case back to the ALJ for reconsideration.
And there it sits, along with a new body of rules from the FAA, which are likely to be issued in the early part of this year. First, however, the draft regs must be reviewed by the Office of Information and Regulatory Affairs, part of the Office of Management and Budget within the White House and “the most important agency in Washington that nobody’s ever heard of,” says Lisa Ellman, counsel with the law firm of McKenna Long & Aldridge LLP. OIRA’s job is to coordinate federal regulations and ensure against “inconsistent, incompatible or duplicative policies.”
The broad contents of the FAA rules are no secret. They’re expected to reaffirm the agency’s regulatory authority over all drone operations, regardless of altitude, route or size of craft. “It starts at the ground and goes up,” says McKenna Long & Aldridge partner Mark Dombroff. (He and Ellman serve as co-chairs of the firm’s UAS Practice Group.)
The rules reportedly will require drone operators to be licensed, with flights limited to the daytime and a ceiling of 400 feet. In addition, the craft would have to remain within the pilot’s line of sight.
That’s a deal-killer for commercial delivery drones, which are likely to fly 10 miles or more from a central facility to destination. Maintaining line of sight for such craft would be impossible.
FAA has offered exemptions from some restrictions to a select number of operators, but they’re limited to remote or sterile areas where all individuals present are associated with the flights. Seven movie or television production companies, and oil companies doing surveys in Alaska, have been granted such rights for craft deploying cameras. (CNN also recently got the go-ahead from FAA to begin testing drones for news-gathering.)
Not so for Amazon, Google and its competitors. In frustration, Amazon has threatened to shift its drone research out of the U.S. because the FAA’s hasn’t authorized its petition to do testing on its own domestic property. (The company’s initial tests were carried out in the U.K.) But the agency isn’t likely to budge any time soon. As of early December 2014, there were approximately 120 petitions for exemption still pending at the agency.
“I believe in the concept of package delivery [by drone],” says Dombroff, “but I don’t think the first set of FAA regulations are going to allow it. FAA has not reached a comfort level with the [sense-and-avoid] technology that’s being utilized in UAS’s, to the degree that they’re going to accept [delivery drones].”
Getting the green light from FAA is only the first step in introducing drones as a regular feature of delivery services. Operators could find themselves the subject of numerous complaints over privacy, although the FAA isn’t concerning itself with that issue. It’s focusing exclusively on public safety, says Ellman.
Traditional surveillance aircraft also generate privacy concerns, but drones could become a particular target because they are relatively cheap and easily available to businesses and citizens, Dombroff says. Moreover, many are equipped with high-resolution cameras that can shoot pictures in remarkable detail. “Because of their mobility, UAS’s are able to get far lower, and reach areas that others cannot,” adds Ellman.
Still, when it comes to the proliferation of drones, the safety issue will remain paramount. There were a growing number of near-collisions between drones and larger aircraft in the last half of 2014, notes Dombroff. “People operating those fall into the ignorant, the arrogant or flat-out stupid,” he says. A clear set of rules from the FAA seems increasingly necessary. In fact, the agency recently doubled down on its authority by urging local law enforcement to round up evidence of, and witnesses to, any violations.
Amazon remains publicly optimistic that clarification of FAA’s rules will soon usher in an age of drones for delivering millions of packages a year. “One day, Prime Air vehicles will be as normal as seeing mail trucks on the road today,” the company has said. With so many issues yet to be resolved, however, that “one day” isn’t likely to come anytime soon.
