Where’s My Drone Delivery?

This week, the Wall Street Journal reported that Uber is planning to start deploying unmanned aircraft systems (UAS, commonly called drones) for delivery to consumers “as soon as next year and commercially operational in multiple markets by 2021.”  There is speculation this initiative could be tied to UberEats, the company’s prepared food delivery business.  As excited as we all are for flying burritos in 2019, this latest drone delivery news raises the question: what is taking so long for drone delivery to get off the ground? 

One answer is restrictive regulation.  Although the Federal Aviation Administration’s (FAA) 2016 small UAS rules, known as Part 107 rules, established a framework for widespread operation of drones for commercial purposes, the rules were limited in several important ways.  Part 107 explicitly does not apply to “air carrier operations,” meaning generally the transport of property over state borders.  14 C.F.R. § 107.1(b)(1).  A person considered an “air carrier” is required to obtain Office of Secretary of Transportation economic authority and additional FAA safety authority.  Part 107 does, however, permit the intrastate transport of property for compensation or hire, as such transport does not cross state boundaries and therefore does not meet the definition of air carrier operations. 

Assuming the delivery is intrastate in nature, drone delivery operators still must comply with several restrictions in Part 107.  First, the UAS may only be flown within the visual line of sight of the UAS pilot, and the FAA currently will not waive this rule for drone delivery.  The usefulness of drone delivery is severely limited if the delivery can only cross the short distances mandated by visual line of site operations.  Second, the Part 107 rules prohibit operation of small UAS over people.  It is hard to imagine how a drone delivery company could comply with this rule as it flies through a neighborhood.  Third, Part 107 operations can only occur in Class G airspace unless the operator has Air Traffic Control permission to fly in Class B, C, D, or E airspace.  This restricts the ability of commercial drones to even get off the ground in urban areas and near airports (although the FAA’s development of an Unmanned Traffic Management system, including its ongoing deployment of Low Altitude Authorization and Notification Capability (LAANC) system for real-time airspace authorization, may mitigate this concern).

Despite these existing constraints, the regulatory landscape is poised to shift.  In April 2018, the FAA published a notice in the Federal Register explaining that UAS could use the process currently applicable to “air taxis” to receive an exemption from the economic authority requirement applicable to “air carriers.”  The FAA Reauthorization Act of 2018, signed into law on October 5, 2018, builds on this by directing the FAA to update existing regulations to authorize carriage of property by small UAS, thereby facilitating the ability to engage in UAS package delivery.  The Act contemplates more widespread use of carriage of property via UAS, expressly authorizing the FAA to amend its regulations “to establish economic authority for the carriage of property by small unmanned aircraft systems for compensation or hire” and providing that such authority may only require registration with the Department of Transportation, authorization from the FAA, and compliance with specific chapters of title 49. The Act also provides that while the new rules are pending, UAS operators can use existing processes (presumably the air taxi exemption process that the FAA is currently using for small UAS) to obtain authority to carry property via UAS.  It is unclear at this stage how the FAA will implement this directive and whether in the future, drone delivery operators will receive relief from the more restrictive conditions of Part 107.  Timing is also a question; although the Act directs the FAA to promulgate the new air carrier rules by October 6, 2019, the FAA has a comprehensive regulatory agenda and other UAS-related priorities, including an advanced notice of proposed rulemaking (NPRM) on safe and secure operations and an NPRM on flights over people that are currently undergoing review at the Office of Management and Budget.

In the meantime, some UAS operators have found opportunities to conduct drone delivery tests and work on establishing that drone delivery can be accomplished safely.  Under the FAA’s UAS Integration Pilot Program (IPP) Alphabet Inc. completed drone delivery of a popsicle to a toddler in his Virginia neighborhood.  This drone flight occurred over people and ventured beyond visual line of sight.  While legal and technology challenges remain, drone delivery may finally be drawing near.