Akin Gump Strauss Hauer & Feld LLP

[co-author: Shea Boyd, Law Clerk]

This week, the White House issued an anticipated Memorandum directing the Department of Transportation (DOT) to establish the Unmanned Aircraft Systems (UAS) Integration Pilot Program (the “Pilot”). The Memorandum suggests a rough timeline that would establish the Pilot within 90 days; accept applications from certain state, local and tribal “partnerships” within 180 days; and begin integration of UAS as proposed by the partnerships within 90 days thereafter.  The three-year Pilot will assist DOT and the Federal Aviation Administration (FAA) with creating a federal regulatory framework for UAS/drones “that will allow more complex low-altitude operations; identify ways to balance local and national interests; improve communications with local, state and tribal jurisdictions; address security and privacy risks; and accelerate the approval of operations that currently require special authorizations.”

According to FAA Administrator Michael Huerta, “Stakeholders will have the opportunity through this program to demonstrate how their innovative technological and operational solutions can address complex unmanned aircraft integration challenges.” Among the operational concepts the Pilot will test are “night operations, flights over people, flights beyond the pilot’s visual line of sight (BVLOS), package delivery, detect-and-avoid technologies, counter-UAS security operations, and the reliability and security of data links between pilot and aircraft.”

The intent of the Pilot is for state, local and tribal governments to create “partnerships” with the private sector to propose new models of UAS integration in their jurisdictions for “low-altitude operations.” Low-altitude operations are defined as those flights taking place below 200 feet or, in certain cases, up to 400 feet. At least five partnerships will be chosen.   

The Pilot is seen as an important step to advancing the potential for UAS in the United States. It may be particularly important for certain drone innovators who have, to this point, focused their UAS testing activities overseas. By encouraging more UAS testing at home, the Pilot should provide a basis upon which to accelerate approvals for UAS operations that extend beyond today’s Part 107 regulations.

Speculation about the role of state and local government with respect to UAS regulation has been the subject of recent press commentary and activity on the Hill. Huerta emphasized that the Pilot “recognizes the importance of community participation in meaningful discussions about balancing local and national interests related to integrating unmanned aircraft.” Although the White House appears to be encouraging collaboration among federal and state regulators in order to create support for informed federal UAS regulations, the aim of the Pilot is not to vest control of the airspace to the states. Michael Kratsios, White House Deputy Chief Technology Officer, discussed the administration’s focus on local partnerships and industry collaboration at the Drone World Expo earlier this month: “We’d like to see more engagement between industry and state, local, and tribal governments. If we are to integrate UAS into the national airspace system, we are going to need local partnerships and community buy-in.” The White House Memorandum makes clear that informing the development of future federal UAS guidelines and regulations is one of the Pilot’s objectives. 

DOT notes that wider integration of the operational concepts evaluated in the Pilot (BVLOS, package delivery, operations over people, etc.) will not be delayed: “If the FAA determines a type of operation that’s being evaluated as part of the pilot program could be conducted safely and routinely, the FAA could authorize that operation before the program ends.” This could, in fact, hasten integration of a broader set of UAS use cases and operations in the near term. 

The Pilot has strong support from the UAS industry. The Association for Unmanned Vehicle Systems International (AUVSI) urged the creation of such a program in a letter to the President. The letter is supported by major names from across the UAS industry, including FedEx, UPS, DJI, Amazon, Verizon, A3 By Airbus Group, CTIA, Intel and the National Air Traffic Controllers Association. The AUVSI letter takes a practical view of the challenges to UAS integration: While it is paramount that “the FAA’s sovereignty of the national airspace must not be compromised,” AUVSI wrote, “a pilot program would allow for a data-driven process, within a controlled operational environment, to explore the best options for states and municipalities to address their needs, as it relates to different types of UAS operations.” 

State rights related to UAS have been a focus of the Hill over recent months. In the Senate, the Drone Federalism Act of 2017 seeks to “preserve state, local, and tribal authorities and private property rights with respect to unmanned aircraft systems.” In the House, the Drone Innovation Act of 2017 seeks to develop a UAS policy framework and establish a pilot program for state and local UAS regulation. Unlike the Pilot, these bills take a more aggressive tack to vest some authority over UAS regulation with state and local governments. To be clear, the vast majority of states already have introduced or enacted some type of drone legislation, a source of tension with the FAA depending on the nature of the legislation.

The Presidential Memorandum establishing the Pilot, the Q&A document and DOT’s informational slides provide more detail. DOT will publish additional information about the application and proposal process in the Federal Register in the coming days.