The Department of Transportation announced today it will require all model aircraft and drone pilots to register their drones with the federal government. It hopes to implement this system by as early as Christmas, and says that those who do not register their drones will face fines.
The DOT's announcement raises all sorts of questions, few of which the agency was able to answer. It's clear that the agency, which oversees the Federal Aviation Administration, wants to crack down on the unsafe use of drones, and it's looking like it's going to try to bypass as much of the traditional rulemaking process as is possible.
Effective immediately, the DOT and several drone interest groups will begin outlining how the registration process will work "with the goal of having some rules in place by the middle part of December," DOT Secretary Anthony Foxx said.
"We want to ramp up on enforcement"
"Registration will reinforce the need for unmanned aircraft users, including consumers and hobbyists, to operate their drones safely. It's hard to follow rules if you don't know what the rules are," Foxx said. "This will help us enforce the rules against those who operate unsafely by allowing the FAA to identify the operators of unmanned aircraft … we want to ramp up on enforcement."
The agency didn't say what drone registration would look like, though it did say it would not require drone owners to get a pilot's license.
Brendan Schulman, vice president of policy and legal affairs for DJI, the world's largest consumer drone manufacturer, told me that it seems unlikely the DOT will be able to hit its December deadline without skirting the standard rulemaking process.
"The vast majority of drone owners operate safely and responsibly, so if a future registration process is efficient and not overly burdensome the outcome could be workable," Schulman told me. "However, the timeline is very compressed and does not seem to leave time for public input which is usually required for this type of rulemaking."
There are many, many questions raised by the announcement, and few concrete answers. There is no precedent for the federal government requiring the registration of consumer electronics; even guns and cars are done at a state level.
"Many consumer and prosumer users see them as nothing but toys"
"I am unaware of any precedent thus far outside of manned aviation," Gretchen West, a drone law expert at Hogan Lovells law firm told me.
All of the details are in flux at the moment, but here are some questions that immediately come to mind. I reached out to Schulman and West to help make some educated guesses as to the agency's thinking.
Is the federal government about to require a bunch of children to register their toys with the FAA?
The FAA has argued in court that anything that flies is an "aircraft," and Peter Sachs, a drone lawyer from Connecticut, successfully got a commercial drone permit on a paper airplane earlier this year. The DOT group tasked with setting this up will have to determine which drones are
"And while the FAA considers drones to be aircraft, many consumer and prosumer users see them as nothing but toys, and educating them about the process may be a challenge."
"The short answer is, the FAA will probably cut corners and perhaps 'reinterpret' existing manned aircraft regulations"
How will the FAA manage to do this?
With millions of drones already in the hands of US consumers and more than a million expected to be sold this Christmas, how is it even remotely possible for an agency that has missed every single drone deadline to rush a program from inception to implementation within two months?
This, really, is the big question, and it's one that we'll at least hazard a few guesses at before the end of this article. The short answer is, the FAA will probably cut corners and perhaps "reinterpret" existing manned aircraft regulations as it has done in the past to go after drone pilots who it believes are operating unsafely.
Legally, how can the FAA argue that not registering your drone is a crime?
Normally, new regulatory authority must be passed by Congress or must go through the public rule making process Schulman earlier alluded to. Foxx said "there are penalties associated with using these devices in the national airspace without complying with the registration requirement." He also said "it's hard to follow rules if you don't know what the rules are."
Notably, the FAA has not finalized its commercial drone regulations, and the FAA Modernization Act of 2012, which ordered the FAA to make regulations, specifically said that model aircraft should remain unregulated. So how can can the FAA suddenly make it illegal to not register your drone without a formal rulemaking process?
"The FAA believes they have the authority based on the urgency of the situation and based on safety," West said. "The Secretary declined to comment on calling it an emergency rule, but the assumption is that would have to be the required path. These rule-making committees traditionally can take years to create rules, but the FAA and DOT is going to have to search through that regulatory process to ensure that this new rule is compliant."
In the past, the FAA has said that all manned aviation standards apply to drones. The agency may argue that since it's illegal to not register your airplane, it's illegal to not register your drone.
What happens with the millions of drones and model aircraft already sold?
As Rich Hanson, head of government affairs at the Academy of Model Aeronautics, noted at the press conference, people have been flying model aircraft safely for decades with no registration. Foxx said that those people will be expected to register them: "One of the things the task force will look at is what sorts of provisions will be made for people who already own drones. We would expect retroactive registration. There may be a grace period, the task force will make a recommendation," he said.
"How will they track users that buy parts and build drones themselves?"
"This may be one of the biggest challenges to retroactively track and find users," West said. "Some that have purchased drones have likely resold them and some users likely built their own."
So what about those DIY and homemade drones?
There is a burgeoning community of makers who invent their own drones. Will they have to register their drones? This is a totally open question.
"How will they track users that buy parts and build drones themselves?" West told me. No one knows what'll happen here.
"Is possession of a drone with a scratched off serial number going to become illegal?"
How are registered drones going to be tracked, anyway?
This is an excellent question that was raised by Jonathan Rupprecht, another commercial drone attorney. "A drone sucked in a jet engine is going to be all over the place," he wrote in a blog post. "Are you going to require metal placards attached to the drone? Furthermore, it is easy to scratch off a serial number. Is possession of a drone with a scratched off serial number going to become illegal?"
What happens when you sell your drone on eBay or Craigslist? What happens if you let a friend fly your drone?
This was also left unanswered by the FAA. Hanson of the AMA noted at the press conference that many drones are essentially toys with short lifespans. These are basically electronics, and we sell our old phones and computers all the time.
Resales are "another task for the task force and one that will be complicated," West said. "Coming up with rules with this many intricacies will be challenging and it is the hope of industry that this accelerated timeline for rulemaking does not create a band aid solution that is not scalable."
Why is the drone industry going along with this?
AUVSI, the world's largest drone trade group, is a partner in the registration program. Brian Wynne, the organization's president, said it will lead to an "increased accountability across the entire aviation community."
The truth is AUVSI has little incentive to care about hobby drone pilots. Most of the largest commercial drone companies are already registered with the FAA, and few in the industry see registration as being burdensome to their businesses. Most commercial pilots are also experienced and fly safely; they are rarely the ones flying near airports or above crowds or making news headlines for interfering with wildfire-fighting crews. It makes sense that those with money staked in the industry would want the barrier to entry to be high.
Until we see specifics, it's hard to say how a national drone registration program is going to look. But it's an unprecedented move that shows the FAA has officially entered crisis mode.