ANNIE BRETT—Recreational drone use has exploded in recent years, rising to over 700,000 unit sales in 2015 alone. While this rise has enabled the general public to explore and utilize the nation’s airspace for the first time, concerns have grown about the safety of widespread drone use. Airplane pilots regularly report interference from drones during landings (over 40 such “dangerous” encounters were reported at LAX in the past year), while several incidents of drone crashes that injured bystanders have spurred additional concerns.
In response to these safety issues, Congress passed the FAA Modernization and Reform Act of 2012, requiring that the FAA create rules to safely integrate drones into the National Airspace System (“NAS”). On October 19, the FAA announced—with the support of many aviation industry trade groups—a first step of requiring registration of all recreational drones. This move marks a dramatic shift from the previous policy of exempting drones under 55 pounds from FAA oversight. However, this raises serious questions both to FAA’s legal authority to regulate recreational drones and to the effectiveness of such a registration system.
The Current State of Recreational Drone Regulation
Currently, drones used for commercial and governmental purposes must receive FAA authorization to fly. Receiving such authorization is lengthy and complicated—akin to the licensing needed for airplanes—and spurred Congress’s 2012 action to force the FAA to streamline the process and integrate drones more effectively into national airspace.
Recreational drones, however, have long been considered outside the scope of FAA regulation because of the low risk associated with their use. Under the FAA Modernization and Reform Act of 2012, drones less than 55 pounds that are used solely for recreational purposes are exempt from FAA regulation so long as they comply with basic safety criteria (i.e. following a community-based set of safety guidelines, not interfering with manned aircraft, and staying more than 5 miles away from airports without prior permission). The Act goes so far as to state that the FAA “may not promulgate any rule or regulation regarding a model aircraft” if it meets these criteria. Model aircraft are defined by the Act as any unmanned aircraft capable of sustained flight and flown for recreational purposes within the sight line of the operator.
Many critics understood this provision as a practical exemption for recreational drone use under the FAA’s regulatory authority, and, to date, it has been. The FAA recently launched a large educational campaign, “Know Before You Fly,” attempting to educate recreational users on the basic safety guidelines of drone use. Aside from that, FAA’s recent rulemaking efforts to integrate drones into the national airspace have been focused solely on commercial and governmental uses.
The FAA’s Proposed Registration of Recreational Drones
On October 19, however, the FAA announced that it would require the registration of recreational drones, effectively bringing recreational users under the umbrella of FAA oversight for the first time. Citing the current enforcement difficulties associated with identifying the user of a particular drone, U.S. Transportation Secretary Anthony Foxx announced the creation of special task force composed of 30 industry and government officials tasked with creating this system over the next two months. The FAA ambitiously plans to receive recommendations from this group by November 20, 2015, and issue new rules by mid-December, 2015, coinciding with the holiday shopping season.
The proposed registration system aims to address two main goals: streamlining enforcement by making drones identifiable and educating drone users through required training as part of the registration system. While this process will be required for all new purchases, certain “toy” drones that are extremely small and pose minimal risk will likely be exempt from registration. What exactly constitutes a “toy” drone, however, is undetermined.
The proposed recreational drone registration system presents several fundamental questions. First, the utility of this registration seems unclear at best. Enabling identification of drones operating unsafely seems to be a reasonable goal. However, to make identification useful, drones would have to be identified either when they were operating unsafely in mid-air or—at the very least—on the ground after the fact. To achieve the first goal, registration numbers would have to be printed largely enough to be visible from the ground, a seemingly impossible requirement given the small size of most drones. To achieve the second, registration numbers would have to be visible after the drone had crashed, a similarly unlikely prospect given that most drone crashes leave the vehicle in many small pieces. Alternatives exist that could help reduce these problems (e.g. requiring radio-frequency identifiers on all drones), but FAA’s proposed registration does not contemplate these. Without proper attention to the realities of drone flight, the FAA risks creating a registration system that is unable to meet its main objectives.
Of greater concern, the FAA’s proposed registration seems to directly conflict with the Act’s model aircraft rulemaking prohibition. Congress specifically prevents the FAA from promulgating any rule specifically covering model aircraft, yet here the FAA is planning a rule that does exactly this. The FAA itself recognizes this prohibition in its interpretation of the Special Rule on Model Aircraft, but states that model aircraft may still be subject to general rules that apply to all aircraft. Moreover, the FAA notes that nothing in the rulemaking prohibition is intended to infringe on the FAA’s enforcement authority against those who endanger the safety of the national airspace. Framing this registration system as a general rule applying to all aircraft will likely be impossible in this case though, given that the scope clearly covers only model aircraft. Instead, the FAA will likely attempt to present this registration system as a necessary step in their ability to effectively enforce and protect the safety of national airspace. However, it remains to be seen whether this will be sufficient grounds to bypass Congress’s very explicit rulemaking prohibition on model aircraft and end the current era of unregulated recreational drone use.
