The Four Most Important Questions Raised by the White House Drone Event

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On Tuesday, August 2, 2016 the White House Office of Science and Technology Policy (OSTP) held its first-ever “Workshop on Drones and the Future of Aviation.” The event, co-hosted with the AUVSI Foundation, brought together 150 leaders in the UAS community, ranging from commercial operators to academics and hobbyists to policymakers. The purpose of the event was to stimulate discussion of the future of this burgeoning industry—where is it going? And what does government need to do to help it get there?

The event wasn’t intended to resolve all of the issues facing the industry, but it was meant to get people talking. With that in mind, here are the four most important questions prompted by the discussions at the OSTP event:

1. The Administration has shown its high-level support for actions to promote UAS. How much can get done in the short time left in this Administration?

At the event, OSTP announced new steps to promote the safe integration and adoption of UAS.  Key actions include $35 million in research funding by the National Science Foundation over the next five years to accelerate the understanding of how to intelligently and effectively design, control, and apply UAS to beneficial applications, a broad range of actions by the Department of Interior to use UAS to support search and rescue, and a $5 million “down payment” by the state of New York to support the growth of the UAS industry across the state.

In addition, the Federal Aviation Administration (FAA) has finalized its Part 107 rules, which will soon take effect and permit (for the first time) normal commercial operation of UAS outside the exemption process. The agency also moved quickly to adopt national registration requirements at the end of last year, and has provided some guidance in the form of a Fact Sheet to local communities about the permissible scope of state and local authority.

Still, much work remains to be done. Part 107 applies to only a narrow slice of the operations where UAS may be most useful—it specifically excludes operations in populated areas, over people, beyond visual line of sight, and interstate commercial carriage. A big percentage of drones’ potential operators, thus, are still waiting in the wings for the FAA to do additional work on these topics.

The OSTP event underlines this Administration’s commitment to the development of this high-profile industry, but there are only a few short months left in this President’s tenure. Will the next administration share both the strategic and tactical approaches that this one has taken toward the development of UAS?  Or will we see a sea change as a result of November’s election?  And how much can this Administration really accomplish by the end of the year? At this point, the goals appear to include an important achievable objective—releasing a Notice of Proposed Rulemaking on operations over people “by December.”

2. The need to take action on spectrum is real.  How long can the industry survive on shared spectrum?

To date, the industry has grown using shared, unlicensed spectrum. This will likely continue to be fine for Part 107 operations, which because they are line-of-sight are necessarily short range.  But as the next phases of the industry develop, including beyond visual line of sight and higher altitude operation, there will need to be dedicated spectrum for command and control of UAS.

The necessary spectrum is already allocated, but there are no licensing rules in place, and the FCC has not yet been asked to create the necessary rules. For low flying and small UAS, the terrestrial wireless networks are a promising option. However, for higher altitudes and larger UAS, there will simply be no way for that important part of the UAS industry to command and control their aircraft at high altitudes or beyond visual line of sight. Critically, unlike in other defense-related contexts, the rules here should not be written by the FCC without a request from interested parties.

The built-in lag for processes at the FCC on these kinds of issues can stretch to three years.  Although long-range operations cannot happen until the FAA adopts its own rules, which is still a year or more away, it would be a shame for the industry to be strangled by lack of access to spectrum when it does receive the FAA’s authority to fly higher and further.

3. After spectrum, UAS Traffic Management (UTM) is one of the most daunting challenges.  Will a “hands off” approach really result in an “internet of the sky?” Or will it lead to a format war?

National Aeronautics and Space Administration (NASA) has been engaged in a multiyear initiative researching prototype technologies for a UTM system that could enable safe, efficient low-altitude operations. NASA’s leadership has been important and essential to addressing traffic management for small UAS operating below 400 feet. As the UTM concept evolves, particularly for larger UAS, the FAA and industry are wrestling with some basic, existential questions about what the role of the regulator should be in managing traffic. The consensus amongst all players appears to be that the regulator should do the minimum necessary to allow the industry to flourish, but what does “minimum” mean here?  Will industry participants voluntarily share information with one another to de-conflict airspace without further incentive to do so? Will industry be capable of building an “Internet of the sky” without more direct regulatory intervention in standardizing formats? Or will this lead to a model where several different incompatible formats jockey for dominance in traffic management—and, if so, what are the implications for safety and convenience?

4.  How will the potential tensions between federal and state authority be resolved?

It is well-settled that the FAA has exclusive jurisdiction over safety in the navigable airspace.  But the development of small UAS raises a host of questions (some legal, some practical) about how the FAA’s authority should be applied to this new technology.

These questions stem from the basic attributes of small UAS that make them so exciting and novel—their small size, ease of use, and ability to take off and land anywhere. These are the very aspects of UAS that give them the potential to democratize access to the skies and transform any number of businesses, from inspection to newsgathering to filmmaking to delivery.

The regulatory structures and divisions of authority that have grown up in the world of manned aviation may have difficulty translating to small UAS. Because they operate at lower altitudes (and because there are potentially many more of them), local jurisdictions face pressure to assert more control over these devices than they have over manned aviation. At the same time, the need for nationwide, uniform safety regulation appears just as critical in the unmanned world as it is in the manned world.

How will this tension shake out? The FAA’s Fact Sheet on state and local authority has provided a degree of clarity, but does the agency need to do more in order to clearly draw the lines of responsibility in a way to promote UAS growth and deployment?

CONCLUSION

The “Workshop on Drones and the Future of Aviation” convened stakeholders to share ideas and begin formulating solutions for the biggest issues facing UAS. While a valuable starting point, resolving these critical issues will require focused activity in the coming months and even years.  Ultimately, the continued growth of the UAS sector—and its concomitant positive effect on the U.S. economy—will depend on resolving these key issues.

Post by Guest Contributors Joshua Turner, Anna Gomez, and Katy Ross of Wiley Rein LLP

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