There’s an old Emo Philips joke about trusting advice from the government: “I pleaded guilty on advice of counsel. Which is the last time I listen to a prosecuting attorney.” Amazon, Lakemaid Brewery, and FlowerDeliveryExpress.com should listen to his warning. Just because the FAA says it has the authority to regulate drones doesn’t mean it actually does.
Currently, the Federal Aviation Administration maintains that anyone operating a drone in the United States must obtain an experimental aircraft permit, which severely limits the number of active drones and the parties permitted to fly them. However, a closer look at the statutory and regulatory laws governing the FAA suggests that the administration may not actually have the authority to require those permits or limit drone usage. If I had a company that wanted to deliver beer by unmanned aerial vehicle (and I wish I did), there are three points I’d raise in my defense against fines levied by the FAA for unlicensed drone delivery.
1) U.S. code and regulations that give the FAA its authority do not define unmanned aircraft, unmanned aerial vehicles, or aerial drones. (Let’s call them all “UAVs.”)
The definitions for the portion of U.S. code that governs air commerce and safety, found in 49 USC § 40102, do not define UAVs. The definitions for the regulations that govern aeronautics and space, found in 14 CFR 1.1, do not define UAVs, either. If the law creating the FAA’s governing authority does not even address UAVs, the FAA’s authority to regulate UAVs is highly suspect.
In an email, Les Dorr of the FAA states that “the FAA is responsible for the safety of the National Airspace System (NAS). This includes all NAS users, including those operating unmanned aircraft systems.” However, he also admits that “we are currently using regulations for manned aircraft in approving [UAV] operations.” There is a legitimate question as to whether the FAA can use regulations that were intended for manned aircraft to regulate UAVs, particularly when those regulations do not define, address, or consider UAVs. It’s a potentially dangerous precedent to permit the government to police one form of technology using a law that was not written to address that technology. It’s akin to using telegraph laws to regulate the Internet.
2) Even if it has the authority to regulate UAVs, the FAA has not taken the necessary steps to do so. In fact, it’s published other documents suggesting that UAVs are permissible.
Admittedly, Dorr has a point and language in the U.S. code appears to grant the FAA broad authority that may encompass UAVs (and anything else that flies, like paper airplanes and spitballs—watch out, third-graders). For example, 49 USC § 40103(b)(1) states, “The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” That’s pretty broad, and arguably the FAA could rely on that to issue regulations and orders that directly govern UAVs.
But it hasn’t. Instead of creating a regulatory system specifically designed to govern UAVs, it has relied primarily on policy interpretation documents, notices, and guidance documents. These are very different from statutory and regulatory law, which must face public scrutiny. Guidance documents in particular have received pointed congressional and judicial criticism. In 2000, the House Committee on Oversight and Government Reform worried that federal agencies could use guidance documents to avoid public comment procedures that “protect citizens from arbitrary decisions and enable citizens to participate effectively in the [rulemaking] process.” In its decision in Appalachian Power Co. v. EPA, the D.C. Circuit Court wrote:
Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations.
That’s essentially what the FAA is doing here. Until the FAA Modernization and Reform Act of 2012, Congress never addressed UAVs. (More on that law in a minute.) Yet, according to Dorr, the FAA has regulated them since 1990. Although Dorr notes that a rulemaking process for “small” UAVs preceded the 2012 act, for more than 20 years the FAA has tried to regulate all UAVs without the necessary procedures that would permit public scrutiny of proposed policy decisions.