Cool and Creepy – The Competing Drivers for the Development of Drone Law – Mark Del Bianco
Two weeks ago I was the designated lawyer on a “Putting Wings on the Internet of Things” panel on UAS at MobilityLIVE in Atlanta. My assigned task was to predict how the laws and regulations governing drones would develop in the next 2-3 years. The morning of the talk, I had a set of predictions but no connecting theme.
The paneI that preceded ours was on location-based marketing (think in-store beacons pinging your smartphone). One of the panelists mentioned that for consumers there was a fine line in LBM between cool and creepy. A light bulb went on for me. Cool and creepy are the yin and yang of commercial drones. The development of drone law over the next decade will be driven by public/legislative perceptions of the cool/creepy factor, not by the technological developments in the industry.
It turns out my predictions for the panel talk fit the cool/creepy dichotomy well. Unfortunately, creepy is likely to be the winner in the short term. I’m using creepy not just in the “ugh” factor sense (think peeping toms), but as shorthand for the various types of fear induced in many people by the idea of flying cameras everywhere. “Cool” refers to all the potentially beneficial uses of drones – precision ag, utility inspections, deliveries, avalanche prevention – that can be unleashed by a well-designed regulatory framework.
My first prediction was that the FAA’s half-baked drone registration idea will be implemented but pointless. Referring to it as a plan dignifies it too much. Anyone who’s been involved with drafting federal policies and regulations knows that the FAA’s goal of implementing something, anything, by Christmas goal is a recipe for failure. There are so many obvious questions (leaving aside the jurisdictional issues), such as who will perform the registration function, will it be mandatory, will it apply to all drones, and will it apply retroactively? In the end, the FAA will at best have only a part of the universe of hobbyist drones registered, and this year’s registration plan may have to be scrapped and reworked. But when questioned by a Congressional committee, the agency will have the defense that at least it tried to do something.
The second prediction was that the next few years will see a rapid proliferation of state and local drone laws. The majority, but not all, will be anti-drone laws. Such laws will continue to be proposed (but not always enacted) by legislators driven largely by privacy fears, not by the potential danger of injuries from drone accidents. Many of these laws will infringe Constitutional protections, but there will be few court challenges initially. Why is that? It’s because in the first few years, those most affected by restrictive local laws will be hobbyists and small businesses, who generally don’t have the financial resources to fund litigation. Legal challenges will eventually be brought as larger drones come into use and the operations of Fortune 1000 companies – think utilities, engineering firms and large services companies – are affected. They will have the incentives and the necessary deep pockets to fund litigation. But challenging the numerous state and local laws in effect by that time may be a piecemeal process akin to legal whack-a-mole.
Where does “cool” come in? Only at the federal level. Most of the potential “cool” use cases for drones – including the delivery operations that have garnered so many headlines – require specific federal authorization. Unfortunately, Congress and the FAA move much more slowly than state and local governments. That’s why my third prediction was that there will be neither significant changes in federal law nor amended regulations for smaller UAS (under 55 lbs.) in the next 2-3 years (and perhaps longer). (It is a given that the pending small UAS regulations will be finalized during that time, but I don’t count that as a change.)
I know this prediction is contrary to the hopes and expectations of many in the industry. But I think it’s realistic. Here’s why. The starting point for my analysis is that Congress is aware that the technology is changing too fast for it to enact a drone-specific law at this point, and in any event it would rather leave the task of drone-specific regulation to the FAA. Congressional action will only occur in the near term if (1) there is a drone accident with significant loss of life, (2) the FAA drags its feet and fails to finalize the small UAS regulations until 2017 or 2018, or (3) there is a widespread perception that the U.S. is losing its competitive advantage (and more importantly, manufacturing and services jobs), to other countries with more industry-friendly UAS regulations.
So any changes in the next 2-3 years will have to come from the FAA, which is notoriously slow to embrace new aviation technology. To begin with, the FAA will be hard-pressed to get the proposed small UAS regulations finalized by the end of 2016, four years after Congress passed the statute requiring the FAA to issue regulations. Once they are finalized, the FAA needs to draft both regulations for larger UAS and amended regulations that will enable small UAS to be used for many more useful commercial operations. That means regulations on autonomous operation and beyond visual line of sight flight (BVLOS). Since the necessary testing of BVLOS and autonomous systems is just starting now, I don’t see how the FAA can get a proposal out on either issue until 2017 at the earliest, and it will probably be later than that. Does the FAA have the incentive or the legal bandwidth to do both at the same time? That’s a good question.
About Attorney Mark Del Bianco
Attorney Mark Del Bianco is Special Counsel to Antonelli Law’s Drone/UAS Practice Group. Mark has more than three decades of experience representing clients in federal administrative rulemaking, enforcement proceedings, and court reviews at the DOJ, ITC, FCC, FDA, CPSC, and NHTSA. He has litigation experience ranging from state trial courts to case briefs in the United States Supreme Court, and in recent years has litigated the constitutionality of state laws at the intersection of technology and privacy. He also provides transactional and regulatory assistance to a wide array of clients, including fiber networks, satellite service providers, business owners, application developers and cloud services providers.