Administration's Drone Pilot Program To Spur Innovative Drone Use

To promote the integration of drone technology, the White House's three-year Unmanned Aircraft Systems Integration Pilot Program partners the federal government with state, local, and tribal governments in the development, testing, and evaluation of drone regulations. The Pilot Program recognizes that nonfederal jurisdictions can and should provide meaningful input to the regulatory process. This Jones Day White Paper provides details of the Pilot Program and addresses probable questions relating to its implementation.

On October 25, 2017, the White House announced a three-year Unmanned Aircraft Systems ("UAS") Integration Pilot Program ("Pilot Program") under which the federal government would partner with state, local, and tribal governments to promote the integration of drones in ways currently limited by Federal Aviation Administration ("FAA") regulation. The program is designed to "test the further integration of UAS into" the National Airspace System in coordination with the private sector and with federal, state, and tribal governments.

This is a significant development because the federal government: (i) is putting down a marker in the oversight debate; (ii) sees an opportunity to relieve some of the pent-up demand to operate in ways not permitted, or requiring waiver, under FAA's small drone rules; (iii) may get real-world data that it can use in rulemaking; and (iv) is formally recognizing that other levels of government have a legitimate interest in regulating certain segments of airspace traditionally reserved to federal oversight.

Proponents of increased local regulation argue that drones are flown at lower altitudes, can take off and land nearly anywhere, are relatively inexpensive and easy to fly, and are generally flown close to the pilot. These unique characteristics, therefore, raise local concerns such as privacy, public safety, and interference with firefighting and police activities. They also argue that the FAA is not structured to handle the volume of cases or issues arising from drone use that are better left to local law enforcement. Conversely, advocates of a stronger federal approach are concerned about compliance with a patchwork of laws and its impact on commerce—which the federal aviation system is designed to prevent.

State and local governments have been actively legislating drone operations. According to the National Conference of State Legislatures, 38 states considered drone legislation in 2017.1 Bard College's Center for the Study of the Drone reported in March 2017 that 133 localities in 31 states had enacted drone laws.2 The Pilot Program's call for state, local, and tribal involvement recognizes and validates that nonfederal jurisdictions have a role to play in drone regulation.

DETAILS OF THE PILOT PROGRAM

The Presidential Memorandum charges the Department of Transportation ("DOT") with implementing a program that will: (i) "test and evaluate various models of state, local, and tribal government involvement in the development and enforcement of Federal regulations for UAS operations"; (ii) encourage development and testing of "new and innovative UAS concepts of operations"; and (iii) inform future...