Four Takeaways on Drone Regulation at CES—2019 Is a Year for Learning and Implementation (and hopefully Remote ID)

Drones featured prominently at this year’s Consumer Electronics Show (CES) in Las Vegas, as in previous years.  While last year Intel dazzled attendees with a 250-drone light show above the Bellagio fountains using its Shooting Star drones, the drone-related events grabbing attention this year concern the applications and technologies that will bring commercial drones into the future.  For example, Verizon announced its intention to be the first telecommunications carrier to connect one million drones to its upcoming 5G network, and Bell unveiled the Nexus, an autonomous air taxi the company hopes will define the nascent urban air mobility space.

Regulatory drone issues were front and center this morning, when Doug Johnson of the Consumer Technology Association sat down with Yariv Bash of Flytrex, Diana Marina Cooper of PrecisionHawk, Brendan Schulman of DJI, and Kimberly Darrin of AT&T to talk through the policy challenges and opportunities facing the drone industry in 2019.  Here are four takeaways from the panel:

1. Incidents Like Those at Gatwick and Heathrow May Set Tone for 2019

The security incidents that took place at Gatwick and Heathrow are still under investigation, and it is not clear what role drones really played in those traffic disruptions—if any.  Nevertheless, these incidents illustrate a couple of important truths:  First, sensational stories about negative drone incidents can spread quickly and can have serious consequences, even if the stories aren’t completely accurate or fully understood.  And, second, regardless of what happened in England, being able to identify drones remotely (Remote ID) is critical to dealing with potential future disruptions.

In 2019, the challenge for the drone industry will be to make sure that the positive stories about lives saved and the benefits brought by drones also get exposure, and aren’t swamped by waves of negative press.  AT&T’s efforts to restore cell service in Puerto Rico using drones, for example, is emblematic of the kinds of positive impact that the technology can provide, but may not get the same coverage as the Gatwick incident. 

At the same time, Gatwick and Heathrow show that there is a real problem that needs to be solved.  Without Remote ID, it is difficult or impossible for first responders and security officials to fully appreciate what may be happening in the air.  The security agencies in the United States have held up further expanded operations because of concerns about Remote ID, and Gatwick and Heathrow can be seen as vindicating that concern.  The good news is that a solution to the Remote ID issue may be in sight — with the recent passage of the FAA Reauthorization Act (which paves the way for Remote ID by repealing “Section 336,” which prevented the FAA from regulating hobbyists; requiring the FAA to implement a safety oversight pilot program that utilizes Remote ID; and incorporating Remote ID into the FAA’s Unmanned Traffic Management (UTM) program), the issuance of the FAA’s Request for Information on Remote ID, as well as all the work on the technical side that has been going on in the background for Remote ID.

2. 2019 Will Be a Year for Learning and Implementation

The projects approved through the Integration Pilot Program (IPPs, launched last year and codified in the FAA Reauthorization Act, are underway, and will provide a great deal of learning and understanding as the year goes on.  The panel discussed a number of these programs, including Flytrex’s drone delivery program in North Carolina and AT&T’s work on how to leverage cell networks to expand drone operations.

The Reauthorization Act also charges the U.S. Government Accountability Office (GAO) with pulling together reports on privacy and federal/state relationships.  Along with the knowledge gained from the IPP, these efforts will help inform the next stage of regulation.

The panel noted that we will also hopefully finally see the FAA release rulemakings on Remote ID, operations over people, and beyond visual line of sight (BVLOS).  The FAA has continued to grant waivers for these expanded operations, and these individual experiences will also provide useful knowledge for how best to structure rules.  But these waivers (and the IPP) are just steps in the crawl-walk-run approach, and 2019 may well bring regulatory clearance for scaled up operations of this type.

3. State and Local Regulations Continue to Present Challenges

144 state laws on drones have been introduced since 2013, according to AT&T’s Kimberly Darrin.  That number reflects continued activity at the state and local level trying to restrict or regulate UAS operations.  In addition, the Uniform Law Commission (ULC) is continuing to consider “drone tort” law reform; while that process has been moving in a positive direction, Diana Marina Cooper of PrecisionHawk characterized the original ULC proposal as a “total killer” that misunderstood both the drone industry and tort law.

At the same time, DJI’s Brendan Schulman noted that there has been one positive trend on this front.  Legislatures in a large number of states have adopted statewide preemption laws that at least forbid local jurisdictions from adopting their own patchwork laws and regulations.  As a result, about 50 percent of the U.S. population lives in states where UAS regulation is being conducted at the state rather than local level.

4. We Have Too Much, Too Little, And Just Enough Regulation

In response to a question from the audience about whether the United States has too much, too little, or not enough regulation, the consensus seemed to be that the answer is “yes.”  There are places where over-regulation poses a problem for the UAS industry, particularly when discussing inconsistent state and local laws, and the Federal Communications Commission restriction on aviation use of the 800 MHz spectrum band should be removed in order to allow drone flights using this band.  

At the same time, it is also critical to have additional implementing regulation at the federal level to enable expanded operations; without further work on Remote ID and the rulemakings for BVLOS and operations over people, the industry will not able to expand and grow.     

Even with all of that, though, the United States remains in a good place compared to other countries.  Yariv Bash noted that Israeli citizens face drone regulations that have not been updated for 20 years, and that it is frequently easier to fly to Iceland or Europe to conduct tests rather than try to clear the regulatory hurdles at home.  Brendan Schulman observed that while it has taken a while to get where we are, Part 107 turned out to be a very reasonable set of regulations authorizing commercial operations, and the Section 336 hobbyist exemption ended up presenting problems but also provided a great incubator for enthusiasts to explore innovative uses of drone technology.  Section 336 was recently repealed by the 2018 Reauthorization Act and replaced with a provision that continues to exempt certain hobbyist operations from regulation while granting the FAA authority to impose certain requirements, such as Remote ID, notwithstanding the exemption.