fhh drone-3The FAA’s efforts to get its arms around the massive proliferation of drones – which are technically referred to as “unmanned aircraft systems”, or “UAS”, in FAA parlance – continue. Those who have been following the situation know that Congress had given the FAA a September 30, 2015 deadline by which to develop and implement a plan “for the safe integration of civil unmanned aircraft systems into the national airspace system”. That deadline, of course, came and went with no regulations proposed, much less implemented. But several weeks after that deadline, the FAA took a significant step: it issued a “clarification” on UAS registration.

The “clarification” means that the FAA will be imposing significantly more regulation on drones operated by amateurs and hobbyists.

One of the FAA’s principal raisons d’être is to maintain safety in the national airspace. To that end, it has long required the registration of all aircraft operating in that airspace, including some, but not all, drones – the goal being to permit the FAA to easily identify and track any aircraft in operation. In deciding which drones to exempt from the registration requirement, the FAA historically drew an essentially arbitrary line: it did not require registration of “model aircraft”. But in drawing that line, the FAA never bothered to define the term “model aircraft”.

Despite the lack of definition, the FAA’s approach proved largely workable while the universe of “model aircraft” operators was limited to a relatively small coterie of hobbyists who tended to be happy to learn, and comply with, the FAA’s guidelines for “model aircraft”. But with the recent explosion of UAS sales, things started to unravel, fast. Suddenly, UAS were showing up everywhere, posing dangers to passenger planes, firefighters, police and ordinary citizens. And, thanks to the “model aircraft” exemption, the FAA had no way of effectively policing the problem. Hence the “clarification”, which essentially says to the UAS community: “No more Mr. Nice Guy”.

Going forward, the number of UAS registered in the FAA’s systems will be greatly increased, and the registration process itself will be overhauled and modernized.

While this may be something of a hardship for UAS operators, it won’t be a walk in the park for the FAA, either. The FAA’s existing system for aircraft registration was designed to handle traditional, manned aircraft like airplanes and helicopters as well as “commercial” UAS (i.e., drones that didn’t fall within the undefined universe of “model aircraft”). The numbers of such craft have been relatively limited, so the burden on the FAA hasn’t too been bad. But last year the FAA created the Section 333 exemption process providing for fairly quick authorization of certain UAS operations (discussed recently by my colleague Laura Stefani). That process mandates registration through the existing registration system. More than 2,000 UAS operators have since sought registrations, and the FAA realized that its existing system would be unworkable once all drones – including purely amateur “model aircraft” – were subject to mandatory registration.

A primary reason for that conclusion: the Federal Government has not fully moved into the digital age. Some applications (and AM radio licensees, in particular, will know what we’re talking about here) must still be submitted on paper, as if it were the 1950s (at least carbon copies aren’t required). Sure enough, the FAA still requires that applications for aircraft registration be submitted on paper.

So the FAA now has to figure out how to get the huge number of existing “model aircraft” UAS registered – and, perhaps more importantly, how to deal with the expected tsunami of such registrations once all the traditional December gift-giving, expected to include even huger numbers of UAS, is over. The FAA’s first step: formation of a task force to look into overhauling the UAS registration system to allow for electronic registrations. It has also asked the public to weigh in on how best to re-design the registration system.

The 27-member task force included representatives of the FAA’s UAS Integration Office as well as the head of Google X, the search giant’s “moonshot” unit devoted to crazy new technologies like self-driving cars (and, you guessed it, UAS). Also participating were folks from companies that sell UAS to the public like Best Buy, Walmart, and Amazon (the latter two have made no secret of their own interest in UAS for their businesses) and a variety of manufacturers of consumer and commercial UAS (like Parrot, Precisionhawk, and GoPro). Also on board, of course, were representatives from traditional aviation interests, like the Air Line Pilots Association.

The Task Force has recently issued recommendations:

  • Hobbyists themselves should register with their name and street address (mailing and email addresses, among other information, would be optional);
  • Pilots under the age of 13 would have to have a parent or guardian register for them;
  • Certain small, “easily breakable” UAS with a “maximum takeoff weight” of less than 250 grams – about half a pound – would be exempt. This proposal is based on the notion that such craft wouldn’t post a risk to people or other aircraft. (Note that this is the maximum weight would include not only the aircraft itself, but also any payload and/or other associated weight.);
  • The registration process should be Web (or app) based and require no filing fee. Successful registrants would receive a registration number to include somewhere on their aircraft;
  • Non-registrants should be subject to fines for failing to comply. Because the current penalty structure for these kinds of violations was, as the Report noted, “established in order to address and deter suspected drug traffickers and tax evaders who failed to register aircraft as part of larger nefarious schemes” and carries a maximum fine of $25,000, the Task Force recommends that the FAA come up with a more “reasonable and proportionate penalty schedule.”

It remains to be seen when the FAA might adopt a universal UAS registration requirement and, if it does, the extent to which the Task Force’s recommendations will be included. The FAA, like many federal agencies, tends to move slowly – witness the fact that it is already more than two months overdue with respect to the Congressionally-mandated overhaul of its UAS rules. But the short-fuse deadline the FAA itself imposed on the Task Force suggests that the FAA has its eye on the fast-approaching gift-giving season. The FAA is apparently figuring that a million UAS might find their way under Christmas trees. If the FAA hopes to effectively regulate those newcomers along with the droves of as yet unregistered “model aircraft” already in operation, the pressure is on to get a workable registration system) in place as soon as possible.

While some have questioned the real significance of the threat posed by “model aircraft” drones, it is beyond question that serious concern has been expressed by the airline industry and public safety officials and that Congress has taken up the cause as well. That being the case, we can expect the FAA to press ahead on a fast track with its efforts to regulate all UAS more effectively. Its ability to achieve that result – whether in the short or long term – remains to be seen.

As always, check back with CommLawBlog as developments on the UAS front warrant.