FAA and Drone Regulation: Should the FAA Have Exclusive Control?

The FAA is working hard to integrate drones into the airspace and ensure the safety of both manned and unmanned aircraft.  But how much control should the FAA have, and would a “patchwork” approach actually hold some advantages for the drone industry?  Our own opinion pieces have supported a single point of regulation; in this challenge to the prevailing view, attorney Jonathan Hayden, Esq. writes that exclusive FAA control over drone regulations may not be best for business.

The following is a guest post by Jonathan Hayden, Esq., attorney at Boston-based Riemer and Braunstein, LLP.  DRONELIFE neither accepts nor makes payment for guest posts.

Why the Drone Community Should Not Embrace Exclusive FAA Control of Drone Regulations

When discussing drone regulations there are two common assumptions within the drone community: first, the FAA, and only the FAA, has sole regulatory authority over all drone flights in the United States; and second, the FAA’s exclusive authority is good for the drone community.  While the extent of the FAA’s regulatory authority is regularly discussed within the drone and legal communities, the question of whether the FAA having exclusive authority for drones is a positive thing for the drone community receives scant attention, as many within the drone community assume sole FAA authority is preferable to the localized rules that would result from landowners having the right to exclude drones from the airspace immediately above their land and state governments establishing the bulk of the country’s drone regulations.  However, it is a serious miscalculation for the drone community to advocate for the FAA to have such extensive, far-reaching authority, and if the FAA ever had such authority, many within the drone community would likely rue the day they advocated for it.

For example, imagine a scenario twenty years from now: the FAA has unchallenged regulatory authority over drone flights nationwide and neither landowners nor state and local governments have any authority.  Over the past twenty years, major drone companies and industry lobbying associations have provided significant information and advice to the FAA about drone technology to assist in the development of numerous drone regulations.  The FAA professional staff working on drone issues is mostly comprised of experts that previously worked for major drone manufacturers and drone service providers.  This results in the FAA regulating drones with a focus on the needs and interests of larger companies and industries within the drone community, a dynamic that is not odd or even controversial, as many government agencies find experts from the ranks of a regulated industry’s experts and employees.

Within that world, a struggling farmer seeking to increase his farm’s crop yields purchases a drone to help track and monitor his farmland from the air, flying the drone only at low altitudes, above his own land.  The farmer’s successful use of this technology will provide him with the same information in minutes that previously would have taken a whole day to collect and regular use of this technology has the potential to dramatically increase the farm’s profitability.  Shortly after he starts using the drone, the FAA informs the farmer that all future uses of the drone are prohibited because the farmer has violated multiple regulations.  Specifically, the FAA requires that the pilot of any drone being used for commercial purposes have completed extensive training under the supervision of a certified drone pilot, training which can usually only be completed by pilots employed with large drone companies.  Clearly such a requirement would not concern a large drone company, and may be desirable to such a company, but it also eliminates the opportunity for entrepreneurs or small business to use drones and new and innovative ways.

The farmer’s neighbor is a drone hobbyist who owns a large piece of land and only flies the drone over her own property to take pictures and video of her own land.  One day, this neighbor receives an FAA citation stating that her drone use violated numerous regulations prohibiting drone flights that could impact commercial drone deliveries, that future violations are subject to $10,000 fines, and that the FAA and local law enforcement will regularly monitor the property for compliance.  The letter does not indicate how the neighbor could fly her drone to avoid future infractions, leaving her unable to know how she can continue to fly her drone without hiring an attorney, or wading through thousands of pages of FAA regulations.  While these regulations would prohibit many average hobbyist drone uses, in a world twenty years from now, where drone deliveries are an important part of the national economy, it would not be surprising for the FAA to enact regulations to prevent non-delivery drones from interfering with delivery drones.

In both of these hypotheticals, the FAA has the power to prohibit landowners from flying drones over their own land for their own purposes, at great cost to a small business and a hobbyist.  While these theoretical regulations do not currently exist, they are examples of the types of regulations that could easily happen if the FAA has total authority to regulate all drone flights nationwide, as the same legal principles and arguments claiming that landowners have no control over the airspace above their land also assert that the FAA can control and regulate a private landowner’s drone flights over his or her own land.

An alternative regulatory structure that would better ensure a vibrant drone community where no single regulatory body, like the FAA, can ground normal, popular drone uses nationwide, is to limit the FAA’s drone authority to ensuring the safety and security of traditional, manned flight, while state governments set the rules to regulate the remaining issues related to the time, place, and manner of drone flights, and recognizing the inherent authority, subject to state and federal laws, of landowners to control drone activity within the airspace immediately above their land.  The states who seize this regulatory authority to the fullest will miss out on the benefits of robust drone activity within their borders, while other states would give drones free reign and enjoy the benefits drones can offer.

Clearly a nationwide patchwork of drone laws and regulations means that drone businesses operating in multiple states will have increased difficulty ensuring that its drones and business practices comply with all state and local laws.  However, this varied patchwork will also create the opportunity for smaller drone businesses with knowledge and expertise of unique local regulations to flourish and succeed, businesses which would likely never have such an opportunity if the FAA creates a single set of drone regulations for the entire country.  This arrangement will also acknowledge the reality that concerns about drones trespassing over private land are very different in rural Iowa than they are in New York City, or suburban Seattle.

Ultimately, whether the FAA has sole, exclusive authority to regulate drone flights nationwide, and the role to be played by state and local governments, will be determined by Congress, state governments, and the courts, and how this issue will be resolved is far from certain.  While some large companies may believe they will be able to influence federal policy in the decades to come, and thus have less to fear from the FAA controlling all drone policy nationwide, the rest of the drone community should not hope for the FAA to achieve such authority, as the results could be catastrophic for smaller members of the drone community.  A nationwide patchwork of state and local regulations may be unwieldy at times, but it would also create more opportunity for smaller drone entrepreneurs and hobbyists to be heard by their local, drone-regulating bodies and co-exist with large drone businesses, allowing for increased innovation from those small drone entrepreneurs.

Jonathan Hayden, Esq., is drone enthusiast and attorney at Riemer & Braunstein, LLP.  Jonathan has written articles about private property rights and drone regulations for publications including Unmanned Aerial.