Should Localities Decide on Drone Policy? Not Everyone Thinks So

Late last month, the White House issued a Presidential Memorandum to the Department of Transportation ordering it to set up a new pilot program that would give localities a bigger role in determining how drones are used. The three-year program seeks to test the integration of drones into the National Airspace System by establishing at least five public-private partnerships where local governments would partner with private companies that build drones. In a related statement, Transportation Secretary Elaine Chao acknowledged the growing usefulness of drones, which she said “are proving to be especially valuable in emergency situations.” The new program, announced with considerable fanfare in Washington, is intended to encourage UAV innovation and involve local governments.

It sounds like good news for the drone community. But not everyone is excited.

“Why would anybody do this?” asks aviation attorney Jonathan Rupprecht, who focuses on UAV policy. “I’m gonna get a call or an email from somebody” who wants to sue over the program.

The program puts such a heavy emphasis on local government involvement that drone operators seem secondary. In fact, FAA documents make clear that local governments participating in the pilot program will be the ones responsible for communications with the FAA. Localities during these tests will be able to “request reasonable time, place and manner limitations” on drone flight operations. A footnote says they may also prohibit “flight during specific morning and evening rush hours” or permit flight only “during specified hours” such as daylight. They also will have the authority to mandate equipment, establish flight speeds, designate takeoff and landing zones, and prohibit flight over certain areas in their jurisdiction.

“That’s the big thing here,” says Rupprecht. “The control of the airspace is exclusively in the federal domain. So how can the president or the FAA or DOT un-exclusive-ify that? How do you do that? It’s a law! A federal statute! How can the President unilaterally just undo that?” Leaving key decisions about drone policy to localities also seems to fly in the face of what the UAV industry has long been working to achieve: a uniform set of regulations across the country. Patchwork regulations at the local level are already seen by some as stifling industry growth.

The pilot program will focus on complex, low altitude flight operations that are currently highly restricted, such as flying over people or out of the operator’s sight. Package deliveries by firms like Amazon are not covered in this pilot program. (The website for the program indicates that the Department of Transportation “will address this issue…in the coming days.” ) Any UAV operator who partners with a local government during the pilot program will still need to file for waivers and adhere to FAA regulations while also following local dictates. However, the FAA indicates that the waivers will be fast-tracked.

Rupprecht sees another major problem: “Where’s the money?” Because a major goal of the program is to build a body of knowledge that the FAA can draw upon to restructure UAV regulations, the FAA has mandated that participants will be required to regularly submit extensive documentation detailing their progress. Program documents make clear that the FAA will not provide any funding, however, leaving local governments and UAV operators responsible for all program costs. “As one of my friends put it,” says Rupprecht, “if there is no money, there will be no innovation. People don’t work for free. Why would anybody do this?”