FAA Reauthorization Is a Win for Drones and Supersonic Aircraft

October 12, 2018

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Congress recently passed the Federal Aviation Administration Reauthorization Act, a 1,200-page bill that will establish new government standards for everything from the minimum width of seats on commercial aircraft to when airlines can bump passengers from flights. However, tucked into this legislation are also provisions for two important emerging technologies: unmanned aircraft systems (UAS), commonly referred to as drones, and supersonic transport aircraft.

Drones

While the FAA created rules to allow for more permissive commercial drone operations over two years ago, it only permitted very low-risk operations, such as day-time flights within line-of-sight. Indeed, there are primarily two legal concerns that made it difficult to both regulate and police drone operations, which led the FAA to restrict activities such as flying over individuals and delivering packages. This bill is designed to address those concerns.

First, the FAA bill addresses some major public safety issues with drones. Currently, government agencies lack sufficient legal power and capabilities to detect and, if necessary, respond to errant or malicious drones. This bill grants that additional authority to federal law enforcement agencies to protect certain government facilities by monitoring for drones, warning operators if they accidently transverse into protected airspace, and, if necessary, disrupting or controlling errant drones without prior consent. The bill also promotes policies for how the government should handle counter-UAS technology to promote safe and effective public safety interventions, such as developing an interagency coordination process. Moreover, the bill makes it a federal crime to equip a drone with a “dangerous weapon” or fly over wildfires without permission—the latter has disrupted first responders in recent years.

Second, Congress repealed a law that specifically prohibited the FAA from creating rules for persons operating drones for “recreation or hobby” purposes if they met a few requirements, such as following a community-based set of guidelines and weight limits. Unfortunately, this prohibition made it impossible for the FAA to create general rules for all UAS operators, including hobbyists, as it made the agency susceptible to legal challenges. For example, the FAA lost a court case when it attempted to require all operators to register their devices, and Congress had to intervene to ensure registration continued. By repealing this problematic prohibition and replacing it with a specific hobbyist exception to FAA certification, the bill will allow the FAA to create general rules for all drone operators.

Beyond addressing these issues, the bill also instructs the FAA to create several policies to accelerate the integration of civil drones into the U.S. airspace. It requires the FAA and the Department of Transportation to update its comprehensive plan for this integration by determining the appropriate roles and authorities of government agencies and the private sector for identifying and reporting unlawful operations, as well as mitigating the risks and hazards from those operations. The FAA must also consider the potential use of a UAS Traffic Management (UTM) system—a system designed to ensure drones do not collide with other aircraft. The Department of Transportation will create a pilot program for a UTM system, and afterward the FAA will create a plan to develop one to use nationally. Congress has also pushed the FAA to permit additional operations than current rules allow. For example, the bill requires the FAA to update regulations to authorize private drone deliveries within one year based on performance requirements and risk levels.

Moreover, the bill requires the FAA to create risk-based consensus safety standards for the design, production, and modification of drones. This bill would require devices to be easily detected or identifiable to the FAA, where appropriate. The bill also authorizes manufacturers to self-certify that they meet these standards and requires those self-certifying manufacturers to prevent tampering or modification of their drones. To be sure, these anti-tampering requirements go too far, vastly limiting hobbyists’ ability to “jailbreak” their drones—a technology that was created in part because amateur inventors and model aircraft hobbyists built and improved upon the technology organically.

Finally, the bill has a number of other smaller provisions regarding drone operations, such as rules for public sector operations and operations over the arctic, as well as a privacy review of UAS operations by the Government Accountability Office.

Supersonic Aircraft

There has been little innovation in civil supersonic aviation over the past four decades. However,  supersonic air travel is set to return as several companies are developing new aircraft made with lighter and more efficient composite materials designed and optimized by computers to be more efficient and quieter than their predecessors.

But one of the policies that held back early iterations of supersonic jets, such as the Concorde, still affects supersonic operations today: the FAA’s ban of supersonic flight over land. In 1973, the FAA ruled that under its authority from the Aircraft Noise Abatement Act, no civil aircraft could travel at speeds greater than Mach 1, the sound barrier, unless specially authorized by the FAA. This ban effectively limited the U.S. supersonic aviation industry by dramatically restricting its potential market size. With this FAA reauthorization, Congress is changing that.

The FAA bill requires the agency to initiate long-term regulatory reform for noise standards for supersonic aircraft. Indeed, it stipulates that by no later than 2020 the FAA must initiate noise standards for supersonics related to take offs and landings from airports, tests, and more. These standards must be based on noise and performance data. The bill also requires the FAA to use this data to create rules to permit supersonic flight over land in the United States after 2020, paving the way for supersonic flights over the continental United States.

Moreover, the bill requires the FAA to take a larger leadership role in the development and approval of U.S. supersonic aircraft both nationally and abroad. It requires the FAA to create federal policies, regulations, and standards relating to the certification and safe and efficient operation of civil supersonic aircraft based on industry input, operational differences between subsonic and supersonic aircraft, and cost-benefit analyses. Moreover, the bill requires the FAA to advocate for these principles abroad at the International Civil Aviation Organization (ICAO), which is responsible for setting international standards for noise and for environmental standards for supersonic planes.

Overall, Congress has taken proactive steps for both drones and supersonic flight with the bill, enabling these U.S. industries to remain competitive and aerospace innovation to proceed apace.