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By Komal Jain
For a split second, it looked like hobbyists and specially authorized users would no longer be the only ones using drones. It seemed entirely possible for the U.S. to catch up to other countries and capitalize on the technology, which is projected to have a positive economic impact of billions of dollars. No longer would the U.S. lag behind other adopters.
The basis for the excitement was a National Transportation Safety Board (NTSB) administrative law judge (ALJ) decision [enhanced version available to lexis.com subscribers], granting a motion to dismiss a Federal Aviation Administration (FAA) order fining a drone operator alleging that the flight operation was commercial, i.e., for compensation, and was prohibited from flight in the U.S. national airspace. In Pirker v. Huerta, the NTSB ALJ held that the agency has no enforceable rule applicable to unmanned aircraft system (UAS) and that the agency could not rely on its policy statements because they were non-binding on commercial model aircraft operators since the statements were FAA-internal guidance and had not been subject to the notice and comment process required for public rulemaking.
The sense of victory, however, was short-lived. The FAA quickly responded to the Pinker decision with an appeal to the full NTSB to stay the decision. If the appeal fails, it is quite likely that the FAA will issue a final rule prohibiting the commercial use of drones in the national airspace, citing to a safety emergency.
The FAA appears unaffected by increasing pressure from drone manufacturers and other industry stakeholders to adopt UAS technology without first promulgating a full body of regulations to manage commercial flight operations. Congress seemingly agrees since it set a 2015 deadline mandating that the FAA develop a regulatory framework for the testing and licensing of commercial drones.
Challenges faced by the FAA in the incorporation of drones into the national airspace system include engineering and systems integration of “sense-and-avoid” systems so that UAS do not collide with other aircraft and objects; continued safe flight if the radio link between the drone and the operator is lost; the collaboration required with other government agencies and aviation stakeholders; homeland security; and the protection of privacy. When asked why the U.S. was behind in adopting this technology advancement, Jim Williams, head of the FAA’s drone office, told the Washington Post that “writing rules for the U.S. is more complex than other nations. The U.S. has far more air traffic than anywhere else and a greater variety of aircraft, from hot air balloons and old-fashioned barnstormers to the most sophisticated airliners and military and business jets. At low altitudes, the concern is a small drone could collide with a helicopter or small plane flown by a recreational pilot.”
This is not the first time we have seen FAA’s slow adoption of new technology. During a January 15 Senate Commerce, Science and Transportation Committee hearing, the question of why the U.S. has been outpaced by other countries was raised. There is no singular reason, but the high accident rate for UAS, which is worse than all other types of aircraft, and the perceived threat drones pose to our personal privacy factor in greatly.
Unquestionably, the FAA recognizes that unmanned aircrafts are a rapidly emerging technology with great commercial potential and “broad benefits for virtually all Americans,” as described by FAA Administrator Michael P. Huerta. Nevertheless, the FAA appears to be steadfast in its commitment to adopt this latest advancement in aviation with measured steps. As stated by John D. Rockefeller, the Senate Committee’s Chairman, in support of the FAA’s slow and methodical pace, “Lives are at stake.”
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