A new era of aviation innovation is upon us as drones—uncrewed, autonomous aircraft—take flight alongside traditional crewed aircraft. Tucked within President Biden’s recent Executive Order on Promoting Competition in the American Economy is an affirmation of the “great potential” of drones and a directive for federal regulators to “facilitate innovation that fosters U.S. market leadership and market entry” for emerging aviation technologies such as this one.
Drones present a massive economic opportunity, but today’s federal regulatory framework is hindering innovation rather than facilitating it. Why? Because, despite important advances made under the Obama and Trump administrations since a congressional direction in 2012, Federal Aviation Administration regulations have not kept pace with what drones can safely and efficiently do.
Today, American companies are using drones for essential commercial purposes abroad—but they’re not able to scale their businesses here in the U.S. Earlier this year, for example, a California-based company began delivering Covid-19 vaccines in Ghana by drone. Those drones were designed and assembled in the U.S., but are only operating at national scale elsewhere.
The Drone Revolution
The drone revolution is underway around the world because the public benefits are so compelling. Package delivery by drone, as one example of a commercial application, is an alternative solution in scenarios where ground deliveries impose greater human, material, and environmental costs.
Fewer ground vehicles mean less traffic, fewer road accidents, less stress on ground infrastructure, and less pollution. A recent study found that drone delivery in a single metropolitan area could annually reduce hundreds of car crashes, hundreds of thousands of tons of CO2 emissions, and hundreds of millions of road miles traveled.
Drone package delivery also offers the promise of greater equity and access for isolated individuals and underserved communities. Drones can help reach Americans left out of the logistics revolution that has brought faster, more reliable access to goods and services.
In addition, they do not require building roads, bridges, or rails to connect points. Instead, drones provide sustainable, low-build mobility through the airspace that is beneficial everywhere, but especially in rural areas.
Beyond delivering items such as supplies, food, and medicine, drones boast many exciting commercial applications across a wide array of industries. For example, drones safely, effectively, and economically provide vital situational awareness, such as aerial mapping and thermal imaging, in support of public safety, emergency response, and disaster response operations.
Drones are also a handy tool for workers to slash the hazard and expense of inspecting infrastructure such as railroad tracks, bridges, and power lines.
To realize all these benefits and bolster national competitiveness, the U.S. must move aggressively to advance commercial drone use. Fortunately, an energetic American drone industry has attracted serious investors, developed world-class technology, and brought products to market.
Streamlined Regulatory Framework Is Needed
The American commercial drone industry will not realize its full potential, however, so long as regulatory frameworks preclude routine, large-scale deployment of safe drone operations. In 2012, Congress directed the FAA to integrate drones into the national airspace by 2015—a goal still not achieved in 2021.
The FAA has made limited progress, including during my own time as an FAA official, in introducing drone operations through a mix of regulations, pilot projects, and waivers—but the situation remains that, as the FAA acknowledges, “the operations are not scalable or economically viable in the mid- to long-term under today’s rules.” Drone innovators in the U.S. instead confront costly uncertainty, delay, and restrictions.
Undercutting the efficiencies of many attractive uses for drones, the FAA today continues generally to prohibit flying a drone beyond the line of sight of the operator or other designated people stationed along the route to maintain visual observation of the drone.
This prohibition stems from traditional reliance on human operators to see and avoid other aircraft, but it loses rationale when technology is capable of safely operating autonomously, and moreover it is imposed without regard for the prevalence of other aircraft operations in the vicinity.
The FAA also does not certify drone aircraft according to a standardized rule; rather, a bespoke certification framework has to be developed for each model because the current rules are not designed for this sort of aircraft. While companies have been working with the FAA on this process for years, no drone aircraft to date has received FAA certification.
As a result of such limitations, beneficial but complex drone operations are only possible in the U.S. today at a very limited scale through one-off, cumbersome FAA waivers that industry must pursue in the absence of appropriate enabling rules.
The drone industry cannot thrive on a patchwork of tightly limited exceptions to aviation rules built around the assumption of a pilot aboard the aircraft. This difficult regulatory environment slows progress and makes investment less fruitful, with consequences of suppressing innovation, raising barriers to market entry, and ceding American leadership—exactly contrary to the aims stated in Biden’s executive order.
Streamlined federal regulation is needed so that regulatory permissions enabling advanced drone operations will issue in a predictable, timely, and broad way.
Regulations Should Enable Innovation
The intensity of regulation should be calibrated according to the level of risk that a proposed drone operation poses. There are no people aboard a drone. Therefore, a drone operation in airspace that has little other air traffic and little population or property below—for example, a drone monitoring crops in a remote agricultural field—generally warrants less stringent safety regulation than a drone operation in busy airspace above a dense urban area.
Regulation should also reflect that drones are more akin to a mobile phone than to a jetliner. Safety standards for drones should be adaptable, setting performance benchmarks without dictating how to meet those benchmarks, so that innovators have latitude to find solutions that may change over time. And regulation should allow for iterative evolution of an authorization as operations expand and technology improves.
Such a regulatory framework—one that is normalized, risk-based, and flexible—will enable America’s drone industry to get to commercial scale, keep innovating, and maintain U.S. competitiveness.
Although the U.S. has made incremental progress in regularizing drone operations, as someone who played a part in that progress during my tenure as a regulator, I recognize that it needs to go further and faster. In the tradition of American ingenuity that has shaped aviation since the Wright brothers, and nine years after Congress recognized the imperative to evolve, there must be urgency in laying a regulatory foundation that would truly unleash the promise of drone innovation.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Arjun Garg is a partner at global law firm Hogan Lovells, and was formerly chief counsel of the FAA and Federal Transit Administration.