Sunday, May 11, 2014

Delays in 'Unmanned Aerial Systems' Rules Led to Muddled Drone Policy: WSJ

Long before the current controversy over commercial-drone operations erupted, some Federal Aviation Administration officials considered unmanned aircraft "the third rail" of aviation regulation.

Delays and false starts in crafting rules for so-called unmanned aerial systems stretch back several years and helped pave the way for today's muddled policy and legal situation. Industry experts and lawyers contend the regulatory logjam is creating a dilemma for the budding industry.

Some individuals are probably going to ignore the prohibition on commercial uses, but most "corporate users take it seriously, and they are being held at the starting gate," according to Michael Senkowski, a partner in the Washington law firm Wiley Rein LLP. "It's just not a sustainable model."

Given the high level of public and White House interest in the topic, soliciting and responding to comments on initial rules covering small drones could take several years, according to FAA and industry officials

Until close to the end of the last decade, these industry officials say, the agency shied away from crafting rules for drones partly to avoid provoking the powerful lobby representing model-aircraft enthusiasts. Since the early 1980s, those hobbyists were essentially expected to regulate themselves, as long as they flew at low altitudes and stayed miles away from airports.

By 2008, however, the FAA had convened an advisory group to craft recommended rules for small commercial drones—those under 55 pounds and intended to operate below 400 feet. The 20-member committee, which included representatives from government, academia and the drone and airline industries, issued a report in April 2009 recommending more of a hands-off approach to small-drone regulation.

The report urged the FAA to have an independent standards-setting organization craft rules for building and operating small drones, and then require industry to adhere to those standards and conduct spot audits to determine compliance. But as public debate regarding privacy protections and other issues escalated over the next few years, the proposals remained in limbo.

White House regulatory officials and Transportation Department brass seemed to adopt a go-slow approach and declined to approve publication, according to people familiar with the process. The proposed rules bounced back and forth among reviewers and FAA experts for more than two years, according to one of those people.

"The privacy issue was a major stumbling block," recalls Ted Wierzbanowski of Aerovironment Inc., a drone manufacturer in California who was the co-chairman of the small-drone rule-making committee. "There are a plethora of reasons why this has been delayed."

At the request of the FAA, standards-setting organization ASTM International spent years crafting proposals for small drones, and earlier this year it released them.

Still, some worry that a few bad actors could influence the FAA to end up proposing unduly strict rules. The agency is already "arbitrarily making enforcement decisions" without any explicit legal basis, according to Gregory McNeal, a Pepperdine University professor. "If some individual drone operator acts recklessly, it could result in spoiling regulations for all the responsible users."