Unintended Consequences: Tech Freedom’s Case against the FAA

Tech Freedom, the technology policy think tank, has sued the FAA to overturn the drone registration program.  In a public statement, Tech Freedom says that rushing the policy through before the Christmas holiday was unlawful, and potentially damaging to the drone industry. Berin Szoka, President of TechFreedom, said: “They exceed the authority Congress has given the FAA. Moreover, the agency illegally bypassed the most basic transparency requirement in administrative law: that it provide an opportunity for the affected public to comment on its regulations… the FAA could not fully consider the real-world complexities of regulating drones. Thus, the FAA’s rules could lead to a host of unintended consequences.”

The drone registration program has been debated on all sides, with the Airline Pilots Association saying that the program does not go far enough to ensure safety, and researchers from the Mercatus Center saying that the program’s benefits to promote safety are questionable at best.  But in conversation with DRONELIFE, Mr. Szoka says that the registration program itself is beside the point.

The point is not whether or not drone registration is a good idea, but whether or not allowing a government agency to enact such a program without following the lawful process is appropriate.  “It’s troubling to us whenever an agency pushes the boundary of it’s authority,” says Szoka. “Process really matters… at a minimum that means slowing down long enough to do a thorough public inquiry.”

The legality of the drone registration program has been argued from several different viewpoints.  John Taylor, a drone hobbyist who has also filed a suit to overturn registration, is one of those who argue that the FAA does not have the authority to impose a new rule for model aircraft- or drones – in accordance with Section 336 of the 2012 FAA Reauthorization and Modernization Act.   The FAA defends themselves against this argument by stating that aircraft have always been required to register, and that they merely presented a new method of doing so for drones.  The Mercatus Center and others state that if aircraft are required to register by existing law, operators are not: and the registration program as it stands registers the person, not the craft.

The  Tech Freedom petition mentions both of these points, but they have based their argument primarily on a clearly stated rule designed to prevent government agencies from making laws without due consideration: the Administrative Procedure Act’s notice-and-comment rule making process.  The notice-and-comment rule says that agencies must provide a minimum period for public comment, except in the case of a national emergency.  While one might assume that an “emergency” refers to something of the magnitude of the September 11 attacks, when no-fly zones were instantly applied: in this case the FAA seems to have felt that Christmas was an emergency last year, allowing them to act without the usual niceties such as public review.

Szoka says that the case against the FAA is important and worthy of engagement.  “This is egregious,” he says, adding that not allowing the relevant industry stakeholders sufficient time to examine a new program could be significantly detrimental to innovation.

The FAA claims that by creating a Drone Registration Task Force to make recommendations on the registration program, they sufficiently consulted industry stakeholders.  But not everyone feels that the task force, a group comprised of representatives from drone advocacy groups, retailers, and manufacturers, was equipped to advocate effectively for the drone community.  Patrick Egan, editor of the Americas desk at sUAS News and Host and Executive Producer of the sUAS News Podcast Series, says that the task force lacked some of the necessary expertise to craft thoughtful regulations for drone integration.  “The Task Force did not have sufficient aviation, engineering, or FAA public policy experience,” he says.  “They could not provide effective representation for the industry.”  Egan comments that some of the problems with the drone registration program were due to a lack of real information; to date there has been no testing with drones to prove the potential for damage that they pose to airplanes.  “Until you do the science, you don’t know what the real risk is to the NAS [National Airspace],” Egan points out.

The “unintended consequences” that Tech Freedom warns of may already be appearing.  Rumors fly about the public availability of the drone registration database, bringing up major concerns over privacy.  Mr. Egan says that in recent conversations with the consumer drone industry, the growth trajectory of the sector seems to have faltered.  “I’ve talked to major manufacturers and retailers…sales are way off,” he says.  It is possible that drone registration program as it stands adds a layer of confusion to the much-hyped and reported levels of federal and local regulation already in place.

With their suit, Tech Freedom has added their significant legal resources to the movement protesting the regulation policies of the FAA.  It isn’t the drone registration program – it’s the unintended consequences of thoughtless overregulation that could damage the potential of the drone industry.