Could ‘Toy’ Drones Ground the Commercial UAS Sector?

Feb. 12, 2019

Fans of the losing Los Angeles Rams weren’t the only ones to come away from the 2019 Super Bowl with an uneasy feeling. In the run-up to the game, federal law enforcement agents confiscated at least six drones operating in violation of FAA regulations. The pilots in question reportedly told FBI agents they were unaware of federal airspace rules. “It’s taken up a lot of time for our agents and law enforcement officers to be targeting these drones when they could be working on other security measures,” an FBI spokesman told The Atlanta Journal-Constitution. “Frustration yesterday was at a very high level as we kept confiscating these drones.”

The arrests came after warnings about drones recently forced the cancellation of 43 flights at Newark Liberty International Airport and caused a 33-hour closure at London’s Gatwick Airport. According to an analysis by The Independent, the British news outlet, the latter incident cost airlines $64.5 million. These were hardly the first such events involving errant drones—from the one that crashed into the upper deck at Petco Park stadium in San Diego, Calif., to the drone that collided with a U.S. Army Black Hawk helicopter over New York Harbor.

For those of us who care about the hard-won safety of the U.S. aviation system, as well as the extraordinary potential of the fast-growing commercial drone sector, the time has come to accept an unfortunate truth: We are flirting with disaster by making Unmanned Aerial Systems (UAS) so accessible to untrained, unskilled, less- than-serious “pilots” who treat them as toys.

My fear is that, sooner or later, an illegally operated drone will cause a catastrophic aviation accident. If that happens, it will most likely be at an airport and involve a plane either taking off or landing, with potentially devastating consequences for the drone business. The new chairman of the House Transportation and Infrastructure Committee apparently feels the same way: On Feb. 8, U.S. Rep. Peter DeFazio (D-Oregon) warned that such a disaster could “kill the commercial drone industry.”

To be sure, federal regulators are trying to stave off such an event by educating the public as best they can. The FAA runs public service announcements on YouTube and even watches pilots’ videos on social media, sometimes contacting them about FAA violations. In addition to a $25,000 civil penalty for using drones to interfere with manned aircraft, the new FAA reauthorization contains a raft of detailed tweaks to regulations on test sites, certifications, waivers, package delivery, airworthiness, operation of model aircraft and more.

But therein lies the rub: In the traditional world of aviation, users of the country’s shared airspace tend to appreciate the importance of carefully observing all of the different ways in which our airspace is officially delineated, subdivided and categorized. Tax attorneys learn the tax code. True aviation stakeholders know to study and follow FAA regulations. But it is clear that among the thousands of regular folks who buy drones every year, a significant percentage are either unwilling or unable to follow the FAA’s complex rules. What will the skies be like as the number of drone users—responsible, irresponsible and everything in between—grows into the millions?

Some observers hold out hope that counter-drone technology—especially software and sensors designed to force UAS to stay out of prohibited areas and maintain the proper altitudes and airspeeds—will guarantee U.S. aviation safety. I am skeptical. My view is that within 10 years (much sooner if we see a truly catastrophic accident) drones will not just be technically defined as aircraft; they will be treated as such in all respects and under penalty of law.

My best guess is that today’s relatively freewheeling approach to recreational or hobbyist usage will give way to a world in which all UAS operators must obtain and maintain FAA certification. This will not be an “open book” online test: Fed up with chaos in the skies, the FAA will require all UAS operators to demonstrate actual proficiency in flying these aircraft and to pass written tests proving their ability to understand and follow the rules for safe operation of drones in our joint airspace.

Pilots will need to seek advanced certificates for riskier and more complex operations—such as flying beyond the visual line of sight—and will have the opportunity to earn additional type-rating certificates for larger or more specialized aircraft as well. Drones may even be registered automatically at the point of sale. In addition, the FAA will drop its emphasis on promoting the growth of UAS and will instead focus on more aggressive enforcement, perhaps enabled by the permission to jam radio signals in emergencies (today that is the purview of other parts of the federal government such as the military or the FBI).

In the best-case scenario, none of this is will occur as a reaction to the proverbial “smoking hole in the ground.” Instead, today’s close calls will awaken lawmakers, regulators and aviation stakeholders to the dangers posed by an ever-growing cloud of hobbyist drones in U.S. airspace. As illustrated by the FBI’s frustrations and DeFazio’s warnings, we may already be seeing the beginnings of this attitude shift. While manufacturers, retailers and everyday consumers will surely grouse about the loss of mass-market “toy” drones, this will be a tiny price to pay if the outcome is preserving our vitally important commercial UAS sector and maintaining the incredible safety record of American aviation.

Veteran aviation attorney Mark A. Dombroff is an Alexandria, Va.-based member of LeClairRyan and co-leader of the national law firm’s aviation industry practice; [email protected].