President Trump issued an executive memorandum to the Department of Transportation telling them to implement the drone integration pilot program described in the memo. The idea is a state, local, or tribal government working with a non-government entity applies to the FAA to have an "innovation zone" designated in their area to develop and safely test new and innovative UAS concepts of operations. These innovation zones allow more advanced drone operations to take place such as "delivery of life-saving medicines and commercial packages, inspections of critical infrastructure, support for emergency management operations, and surveys of crops for precision agriculture applications." The innovation zones also will allow for "testing of new UAS traffic management systems and detection and tracking capabilities" and counter UAS technology in accord with current law.
- Support from on high. President Trump and Secretary both appear to be extremely supportive of drones for creating jobs. If the FAA starts dragging their feet, President Trump and Secretary Chao are going to ask questions.
- Publicity for the winners.Whoever is in the first group selected will have a good amount of publicity.
- Pause. Allowing the states, local, and tribal governments to allow some of these pilot programs to go on might help slow down the current proliferation of local drone laws. Let’s say you have a local government wanting to create a drone law. The local drone flyers can say, “Hold up there buddy. Go talk to the FAA as they have a pilot program for that.” Yes, we’ll always have rogue governments but I think more will be willing to participate and while they are participating, the FAA might tone them down.
- Force a discussion of a difficult topic. It will force law enforcement and those favoring preemption all the way to the blade of grass to come up with some workable ideas where you can actually enforce the laws by catching the lawbreaker and throwing him in jail/fining but at the same time not violate Article VI of the Constitution. Both sides have points and neither really knows how they work together so they just entrench themselves in their position and lob arguments at the other side without considering the legitimacy of the other side’s arguments.
- Green light for complex operations. If you are wanting to do drone operations beyond the normal part 107, this appears that the FAA will be moving the direction to allow more of the complex and difficult types of operations many of us have been wanting.
- It might get SOMETHING done. Let’s face it. Congress will most likely not pass much in this area anytime soon. They are too busy fighting over ATC privatization. Maybe some language will get slipped into the next FAA reauthorization but who knows. If you look at the list of proposed drone bills, only 2 of them ended up becoming law. Congress isn’t going to be doing anything anytime soon. Drones are a low priority.
- Invitation for Unlawful Non-Federal Regulations. The pilot program invites state, local, and tribal governments to propose restrictions. More on that in the problems raised section below.
- Enforcement. “[P]artnerships could give local officials an opportunity to help to manage local operations subject to FAA safety oversight.” Let’s say one of these local partnerships creates some laws and the first guy gets arrested. The prosecutor files charges. Defense counters saying that the law is unlawful because the local law is preempted by federal law under Article 6 of the Constitution. Now what? We have to battle it out in the courts. Courts are going to look at the intent of CONGRESS when the law was created, not the intent of President Trump years after the law was created to determine whether field or conflict preemption applies. I think the judge in the Singer v. City of Newton gave the FAA WAYYY too much deference by looking at the FAA letter to state and local governments. What happens if the judge strikes down the law as illegal? How does that undermine this whole pilot program?
- Creates more operational headaches for businesses. This has the potential to cause problems by creating a massive patchwork of laws. It doesn’t allow businesses to be legal AND competitive. Let’s face it. We’ve all seen this for the last couple of years with the FAA’s horrible enforcement action record. Unless there IS actual enforcement of the laws, the ones that try to be lawful will be punished because they will spend time and money trying to comply with the laws while their illegal competitor will pick up more business with their lower rates.
- Didn’t fix FAA enforcement problems. Why didn’t this memo go further and tell the FAA to specifically change its enforcement philosophy on drones which is extremely relaxed. Based upon information from the FAA, they have only prosecuted since 2015 a whopping total of 48 drone flyers. Furthermore, why didn’t the memo direct the FAA to go after the companies which repeatedly hire illegal drone operators? They play into this whole thing by funding this black market by picking the lowest bidding operator (which many times is the illegal operator) while not really caring about if the operations are legal are not because they think they are insulated from a lot of the liability by the sub-contractor relationship. The FAA has the ability to go after the hiring company in certain scenarios.