The Federal Aviation Administration has maintained a dominant say on the nation's entire airspace. When it comes to drone deliveries, this level of regulatory power may have negative ramifications for states and local areas.
As tens of thousands of new COVID-19 cases appear every day in the U.S., the concept of local drone deliveries appear particularly attractive, and industry giants have responded in kind.
In August, Amazon became the third company to receive approval from the Federal Aviation Administration (FAA) to perform drone deliveries beyond visual line of sight. And in September, Walmart started its second drone delivery pilot program.
While companies grapple with the technological challenges of drone delivery, a question must be considered: How should states and local areas prepare for this type of groundbreaking service?
The question above becomes complicated once one considers the current regulatory framework at play. As of now, the FAA calls most of the shots when it comes to drones, even if a citizen might expect local authority.
“If a drone crashed into here where you’re sitting right now, who would you call?” posed Wade Troxell, mayor of Fort Collins, Colo. “You’d call a first responder, fire or police. What you’re supposed to contact is the FAA. You know, that doesn’t seem to jive with normal local control and safety and privacy issues as it relates to community.”
“Unfortunately, it appears that the federal government is poised to take the position that they’re going to control all of this, that they believe they have it all under control and that there will not be any problems that the FAA won’t be able to handle themselves,” said Gregory McNeal, a law and public policy professor at Pepperdine University.
Given that no one in the country can identify a drone at random, one can perhaps understand the FAA’s caution about ceding power. But McNeal suspects the drone delivery industry will grind to a halt if regulations don’t evolve. His prediction is that as the number of drone deliveries increases, the FAA will become overwhelmed by citizen outrage and complaints about noise, nuisances and trespassing.
Basil Yap, unmanned aircraft systems (UAS) program manager for the North Carolina Department of Transportation, said there are two FAA staff who respond to phone calls about drones in North Carolina.
“That’s for the entire state of North Carolina,” Yap said. “Two individuals responding to all of those calls. You would think that you would delegate this down to the local level.”
Early evidence suggests noise is an important issue. Drone delivery company Wing received criticisms about noise after it started making deliveries in Australia. And residents in Montgomery County, Va., seemed to be most concerned about potential noise before Wing started making deliveries there, said Jennifer Harris, public information director for Montgomery County.
Margaret Nagle, head of policy and government affairs for Wing, said the company modified the propellers on its aircraft after hearing the noise complaints from Australian citizens. Both Nagle and Harris said they’re not aware of any similar negative feedback in Montgomery County.
“People were surprised by the lack of noise in Virginia,” Nagle said.
Whether noise can always be controlled by companies remains an open question. Brittney Kohler, transportation and infrastructure legislative director for the National League of Cities, believes local areas should update noise ordinances in order to curb possible conflict.
The FAA has a role to play here, too, and it should learn from its mistakes with airplane regulations, Kohler said. In 2014, the FAA began changing the flight patterns of airplanes. The idea was to modernize and become more efficient, but the new flight patterns enraged citizens who were not used to or expecting noise. Court cases exploded across the country.
“With drones, we can randomize patterns so that they don’t go over the same communities all the time,” Kohler suggested.
Yap agreed that “you want to make sure they’re not always over disadvantaged communities or neighborhoods.”
Reggie Govan, former chief counsel of the FAA, said the model used for manned aviation won’t “work in its entirety” in relation to drone delivery regulations. Most importantly, Govan thinks the federal government and state and local governments need to engage in “cooperative federalism.”
“What I do envision is that the FAA would set out some areas in which state and local governments have a lead regulatory responsibility, and they have to execute that within some parameters,” Govan explained. “If you’re outside the parameters, then you have to explain it to the FAA.”
In 2017, the FAA’s UAS Integration Pilot Program (IPP) selected a number of local areas to test drone operations in different contexts, with the intention to glean insight for the future. While Govan praised the overall purpose behind IPP, he believes states and the drone industry “got snookered” by the limited amount of testing that has occurred over the last three years, especially when one looks at the far greater progress made by the autonomous vehicles field over the same period.
“The IPP was stymied almost from the beginning both from political considerations and institutional constraints,” Govan said.
Govan’s remedy for the situation is simple: States should start working with their municipal and industry partners on proposals to the FAA, especially given that the federal agency has declared that it’s “open for business.” Govan also thinks states should invest more in things like New York’s 50-mile drone corridor.
Yap said states and local areas should resist the inclination to only respond after things start happening outside of their control.
“Typically, state and local governments are reactive to technology … I think it would be smart for state and local governments to be proactive now and to understand why it is important for them to be involved,” Yap said.
McNeal advises states and local areas to immediately engage with Congress, the U.S. Department of Transportation and the FAA. Failure to do so could have unfortunate consequences.
“If they wait, it appears like the DOJ and DOT are going to issue guidance at the end of this year that’s going to take away their rights,” McNeal warned. “They need to act or they’ll find themselves on the receiving end of a legal opinion that will constrain their rights.”
Another thing states and local areas should be aware of is the perspective of the drone delivery industry on regulations. Yap said companies don’t want a “patchwork of regulations” across the U.S., but he believes this concern could be easily solved if states can agree on certain types of rules.
Nagle confirmed that Wing doesn’t want to face a patchwork situation. Nagle’s advice to states and local areas is to avoid setting hard and fast rules before having an active dialog with industry.
“A lot of times those conversations can provide fruitful paths forward that frankly enable industry and the community to see successful outcomes,” Nagle said.
“We do think it’s really important that the federal government continue to maintain a single set of rules for how we operate, the safety of our operations and our access to the airspace,” Nagle added.
Govan, however, stated that companies could be waiting a long time if they rely on the FAA for everything. “If you just want to deal with the FAA, it’s going to be another 15 years for drone delivery at scale,” he said.
States should aggressively look out for the interests of their citizens, Govan added.
“They ought to be declaring, as a matter of law and regulation, no-fly zones that are rational, that are premised upon a reasonable evaluation of security needs, and they ought to be thinking about their citizens’ privacy issues,” Govan said.
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