As published in the July 17, 2018 Orlando Sentinel
Ronald Reagan said: “The nine most terrifying words in the English language are: I’m from the government and I’m here to help.”
Lending credence to the former president’s skepticism, a new study of federal drone regulation now confirms what many in the drone space have known for awhile—that the Federal Aviation Administration’s good intentions actually stifle the development of valuable commercial drone operations, from the delivery of medicines to the long-range inspection of rail lines. According to the National Academy of Sciences, the FAA demonstrates “too little recognition that new technologies brought into the airspace by [drones] could improve the safety of manned aircraft operations, or may mitigate, if not eliminate, some nonaviation risks.”
The report paints a troubling picture of regulatory paralysis “wherein ever more data are often requested to address every element of uncertainty in a new technology.” Moreover, a “‘fear of making a mistake’ drives a risk culture at the FAA that is too often overly conservative, particularly with regard to (drone) technologies, which do not pose a direct threat to human life in the same way as technologies used in manned aircraft.”
To be fair, the FAA’s mission is “to provide the safest, most efficient aerospace system in the world.” That there were no U.S. airline fatalities in almost a decade speaks to the effectiveness of the FAA’s rigorous rule-based culture. And, with an anticipated 7 million drones expected to fly in the national airspace by 2020, the FAA is playing catch-up as enforcement tools traditionally available to manage conventional airplane operations are of limited use as applied to the flight of drones flying just “above the grass.” Agency resources are limited, too. As one airport manager said, “only 3 people have responsibility for an area the size of West Virginia and some [drone] users are very well aware of it.”
Yet, while the challenges of integrating drones into the national airspace are substantial, the “near-zero tolerance for risk” that characterizes the FAA’s airline risk assessment process isn’t translating well to small drones flying at low altitudes away from other traffic. As the federal report notes, “the public already accepts a background level of risk that is extraordinarily low” and the FAA should be focused on making drones as safe as other background risks that people experience daily. After all, the report notes, “we do not ground airplanes because birds fly in the airspace, although we know birds can and do bring down aircraft.”
Also troubling is the discrepancy between the FAA’s actual practice and its stated commitment to a risk-based approach for approval of drone operations. In 2012, Congress directed the FAA to “safely accelerate the integration of civil unmanned aircraft systems into the national airspace system … not later than” September 30, 2015. The FAA missed that deadline, yet enacted on an emergency basis a rule that Congress prohibited it from creating. When the rule was challenged in federal court, the FAA insisted that it had not created a new rule but only extended a 1920s-era rule applicable to manned aircraft. The court, in a unanimous opinion written by eventual Supreme Court nominee Brett Kavanaugh, rejected the FAA’s position. During argument, then-federal judge Kavanaugh admonished the agency, saying: “You’re just making stuff up… that’s not what the statute says.”
The FAA published the first uniform set of regulations in 2016—“Part 107”—allowing the flight of commercial drones weighing less than 55 lbs. and providing a waiver mechanism designed to loosen some operational strictures. But even this waiver scheme discourages innovation. Commercial drone programs, forced to comply with current regulations, report that they are reluctant to imagine and advocate new operations that would inevitably result in endless haggling over waivers.
Against this disappointing record, it is difficult to accept recent remarks by the Acting FAA Administrator that “[t]he era of red tape strangling good ideas is over.” Paradoxically, the drone industry is not lobbying for deregulation, but is instead starved for regulatory guidance.
With flying cars and urban air transport on the horizon, the larger lesson is the imperative of devising appropriate regulatory mechanisms that safeguard the public without unduly discouraging experimentation with innovative technologies. As the NAS report aptly concludes, the FAA’s risk assessment process requires an entirely new paradigm, and rather than perseverating about “What might go wrong?”, the FAA should ask: “How can we approve this?”