Wings Clipped: Amazon’s Prime Air Drone Delivery Pipe Dream

BY ANTONIO HERNANDEZ — On the morning of December 1, 2013, America turned its focus to the future of commercial drones, or Unmanned Aviation Systems (“UAS”), as the Federal Aviation Administration (“FAA”) calls them. The night before, Amazon CEO Jeff Bezos showed off Amazon’s “octocopter” drones to CBS’ “60 Minutes.” He optimistically envisions that within possibly four to five years, octocopters will deliver goods weighing five pounds or less (accounting for 86% of Amazon’s deliveries) to customers’ doorsteps within thirty minutes. As Bezos notes, the first major hurdle to his vision is the FAA’s current regulatory scheme.

The current scheme does not contemplate broad civilian UAS use. Part of the problem is that UASs fall under the FAA’s broad definition of aircraft—“a device that is used or intended to be used for flight in the air.” As a result, for a civilian today to fly a UAS like the octocopter, a Special Certificate of Airworthiness – Experimental Category (“SCA-EC”), issued by the FAA, is required. Even still, the FAA’s UAS Fact Sheet points out that UASs with such a permit are not allowed to carry property for compensation or hire—squarely at odds with Amazon’s vision. Instead, SCA-ECs are issued only for research and development, market survey, or crew training purposes. Lastly, business purposes are excluded from the model aircraft exceptions to the general FAA regulations. In effect, commercial use of Amazon’s octocopters for delivery is illegal today.

However, in 2012, President Obama signed into law the FAA Modernization and Reform Act, which directs the FAA to account for the burgeoning commercial UAS industry, among other commands. In compliance, the FAA has laid out a road map that aims to allow civilian UAS use in the National Airspace System by 2015. This is the date that Bezos and countless others are eagerly awaiting. However, they likely will be waiting for much longer because the road map specifically excludes autonomous UASs like the octocopters. Instead, the road map provides for UASs controlled by humans operating a control station. Furthermore, it is not clear whether one pilot will be allowed to simultaneously pilot more than one aircraft—a potential deal breaker from a cost standpoint for an Amazon-type delivery network.

While Amazon and others may be on the technological cusp of commercial autonomous UAS use, the FAA has rightly decided that Amazon-like efficiency does not outweigh safety. After all, safety is the FAA’s top priority.  The transition from manned flight to autonomous flight logically should only follow the same transition in the world of automobiles—a transition that appears to be in its middle stages. The safety concerns with autonomous UASs are far too serious and numerous. GPS spoofing and jamming, which might interfere with a UAS’s ability to accurately determine its location, is just one concern specifically raised by the Government Accounting Office (“GAO”) in its report on UASs. The GAO also maintains reservations about the current state of “sense and avoid” technology to prevent air-to-air collisions between UASs and any other aircraft. In short, the GAO report brings out sobering truths about the potential $89.1 billion dollar industry it forecasts.

Regardless of the outcome of the FAA’s expected rulemaking in 2015, will bold entrepreneurs and innovators take calculated risks and push boundaries anyway? Probably. Today, despite the FAA’s regulatory might, some people have already been daring enough to fly UASs, seemingly in defiance. For instance, in Philadelphia a dry cleaner uses a remote control UAS to fly clothes deliveries to customers nearby. Earlier, in March, a UAS came dangerously close to a passenger plane at John F. Kennedy International Airport. The effective enforcement of any regulations will clearly be a preeminent concern going forward. Today, with still relatively clear airways, enforcing a prohibition on model aircraft and UAS use near airports should be manageable, yet someone still managed to cause a scare at JFK.

Now, imagine the difficulties that would arise from skies filled with UASs of all shapes and sizes buzzing around. The bottom line is that the fears associated with rapid accommodation of commercial UASs are well-founded and anchor the case for a thoroughly vetted, transcendent, and conservative regulatory scheme. Until such regulations are implemented, Amazon may have to keep its drones and lofty goals on the tarmac—resorting instead to traditional delivery methods.

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