Terry Gerton There’s some fascinating regulatory activity unfolding at the moment concerning drones, coming from both the FAA and the FCC. What’s creating the sense of urgency at this particular time?
Katie Inman Yes, yes, excellent question. I think there are several factors at play. About a year ago, the president released a couple of executive orders that really set things in motion, and we’ve been seeing that momentum build throughout the past year. I expect it will carry on in the months ahead. On both the FAA and FCC sides, a shared theme is emerging, and that’s security — national security specifically. We’re seeing concerns being raised, and the federal government has been quite direct about it, essentially saying, “We have concerns, and we want to make sure the right risk mitigation measures are in place.”
Terry Gerton Drones have generally been viewed as commercial technology. What has shifted in the landscape that’s now pushing that security concern to the forefront?
Katie Inman Well, they’re still very much commercial technology, and we’ve seen some truly remarkable innovative applications over the years — drones being used for avalanche control, weather research, search and rescue, just to name a few. There are a host of fantastic uses, and law enforcement has been using them as a valuable tool as well. But I think what’s really happening is that law enforcement and national security agencies are converging and saying, “Hold on a moment.” Technological advances and these tools can be exploited for harmful purposes. I believe the federal government has been aware of this for some time. However, recent international events and so on have perhaps heightened the level of concern.
Terry Gerton And the FAA and the FCC seem to represent very different angles on the drone issue. How do their responsibilities complement each other here?
Katie Inman Well, that’s a great question and a sharp observation. You’re right — both the FAA and FCC have significant roles in drone regulation. The reason for this is that the FAA is tasked with and accountable for maintaining safety within the National Airspace System — the entire system. The management and safety oversight of that system falls squarely under the FAA’s authority. The FCC, on the other hand, manages the spectrum and the communications aspects of radio frequency devices. Now, I’m using quite a bit of technical language here and simplifying somewhat, but please understand that whenever a radio frequency device is intended for operation, import, or sale in the U.S., that device will need equipment authorization, and its operation must occur on an appropriate frequency band — either licensed or unlicensed. So in that sense, the FCC truly governs the communications side, which is critically important, while the FAA governs airspace safety. These two areas intersect significantly when it comes to drones, and the FAA and FCC collaborate very effectively to ensure that each agency is fulfilling its mandate and achieving its goals without working at cross purposes. Because their roles are so distinct, there’s no overlap or contradiction, and in my experience, they work together quite well.
Terry Gerton And Katie, some of the authorities being addressed in this new rulemaking have existed for years. Why is it that they’re only now being acted upon?
Katie Inman Oh, thank you. Yes, I believe we’re referring to the Section 2209 rulemaking stemming from the 2016 FAA Extension Safety and Security Act. You’re right — it’s been a long time in coming. The president referenced it in his executive order last year, and people have been discussing it for quite a while. I can’t say precisely what caused the delay. In my time at the FAA, I know it was very much a priority the agency was working toward. And as with any complex effort, obstacles can arise. What Section 2209 did was direct the FAA to issue regulations creating a process for restricting drone flights over critical infrastructure. So defining “critical infrastructure” itself presented significant challenges for the FAA. In this proposed rule — for which comments are due July 6th — the FAA looks to define critical infrastructure by referencing an existing statute, and then proposes a process for someone to say, “I believe I have critical infrastructure here; I fall within one of the 16 sectors outlined in the FAA’s proposed rule, and I’m going through the application process to have my site designated as a UAFR — an Unmanned Aircraft Flight Restricted Area.” There are two categories: special and standard. The standard one covers those 16 sectors and essentially functions as a “no trespassing” sign, as some have described it. A drone would not be permitted to enter that area without first notifying the critical infrastructure owner or operator. The second type is the more restrictive special UAFR, where drone operations would largely be forbidden unless you obtain explicit permission to enter, and that permission would likely be granted only in narrow circumstances. So that’s the proposed rule currently open for comment. You can review the public comments on the docket, and doing so is very worthwhile. I think staying engaged and submitting a comment if you want your voice heard is a great idea. That’s the proposed rule currently in development. But Terry, there are additional steps the FAA has taken or is pursuing related to drones and security. There’s the Beyond Visual Line of Sight rulemaking proposed last fall. The comment period on that has closed, but we anticipate some movement on it relatively soon. I’m bringing it up in the security context because it’s worth noting the FAA didn’t propose this rule alone — it’s a joint rulemaking between the FAA and the TSA from the Department of Homeland Security. So you have both agencies’ authorities coming together to enable — or propose to enable — fairly heavy drones, up to 1,320 pounds under the proposal, to operate beyond visual line of sight. And security vetting through the TSA would be required in many cases. And right now, as we speak, the FAA has recently put some security measures into effect. These involve establishing temporary flight restrictions over FIFA World Cup venues. There are several of those locations, and the FAA is warning about very severe penalties. So the FAA is taking a truly comprehensive approach to addressing security needs. At the same time, the FCC has taken additional steps on the security front as well. It maintains the covered list, which identifies entities whose equipment authorizations will be denied, meaning drones would not be able to receive equipment authorization for a new UAS model that would need it.
Katie Inman: an equipment authorization if that drone is manufactured abroad or relies on essential parts that come from overseas. So that’s another powerful security safeguard we’re observing. So on top of what we’ve witnessed most recently with the 2209 rulemaking and the FCC’s request for comments through their publicNotice focused simply on updating outdated regulations, we’ve observed these additional active, very recent measures as well. So once again, we’re watching a truly thorough strategy being implemented here for drone security.
Terry Gerton: Katie Inman is a partner at Holland and Knight. Katie, that is a fantastic overview of essentially all the various dimensions of the drone regulation landscape at the moment. Something you mentioned as you went through that really sparked a mental picture for me was when you described a “no trespassing” sign, and I’m visualizing that hovering in the air and wondering how that would genuinely work in reality. If you consider all of those rules combined, what does that actually change for drone operations, for drone operators and what they might do with these devices and how they might use them in real-world practice.
Katie Inman: Oh, thank you, Terry. That’s a wonderful question, because in practical terms, what should people actually do to cope with the shifting environment we face today with drones? And my top piece of advice would simply be to understand exactly what you’re doing. Do your homework before you head out. Don’t just launch a drone into the sky thinking it’s no big deal. Just having some enjoyment. No, there are numerous regulations that relate to every drone operation whether under Part 107, whether you’re flying recreationally, whatever the case, the drone must be registered unless it’s extremely lightweight, you know, as a baseline and other features generally need to be present on it such as remote identification, which would enable the FAA to gather data from that drone while it’s in flight and identify who the drone is registered to. So that’s another security safeguard but oh and then naturally looking for the temporary flight restrictions and those restricted zones. The great aspect about drone operations today is that there are numerous applications available and the FAA maintains an excellent website on this called Before You Fly. And so consulting that website and educating yourself, ensuring you understand exactly what you’re doing before you head out there is, I simply cannot stress that enough. And then naturally, if you’re a drone operator who wants your voice to be heard, there are several avenues for doing that, ensuring you’re aware of what rules are being proposed and submitting comments on them. That’s the beauty of the Administrative Procedure Act. So people can genuinely participate in the conversation very easily, but overall and in terms of practical steps, when it comes to operations, I would recommend simply remaining deeply engaged and current with resources like the Before You Fly website that FAA publishes. And simply tracking as many updates as possible, particularly before you launch your drone.
Terry Gerton: And as you’ve outlined it, the community that’s invested in these issues ranges all the way from the individual hobbyist drone pilot to business drone operators, to the owners and operators of vital infrastructure. What brings them all together into a shared framework for dialogue and communication?
Katie Inman: If they share common objectives such as ensuring that drone operations can continue, ensuring that innovation isn’t stifled, while at the same time allowing drones to function safely and securely, I believe nearly everyone can rally behind that mission. Naturally, there will be some bad actors out there and the federal government seems to be performing admirably at ensuring that they’re stopping any sort of threats in that area. But for those of us who are drone operators or who care about, you know, drone advancement here, regardless of whether they’re a critical infrastructure owner, an operator themselves, or a manufacturer, I think we can all unite around the single shared objective of ensuring drones are safe, they’re not presenting a risk to other aircraft in the national airspace system. That shared mission will unite everyone.
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