Assessing Drone Industry Successes & Challenges as the FAA's Small Commercial Drone Rule Turns 1

By Scott C. Hall.

The Federal Aviation Administration’s (“FAA’s”) Part 107 rule for small commercial drone operation, effective as of August 2016, has now been up and running for over a year. In light of this milestone, the FAA recently took the opportunity to highlight various successes resulting from the rule and to promote continuing drone innovation and operations. Yet, while much progress has been made in commercial drone use over the past year, an honest assessment also requires acknowledging that there are still many obstacles to overcome, and much work to do, to fully realize the benefits of commercial drone operation in the U.S.

One particularly notable success for the drone industry has been the important role played by drones in supporting emergency response and rescue efforts in connection with recent natural disasters, including Hurricane Harvey and Hurricane Irma. In addition to the use of drones by media outlets to provide news coverage of otherwise inaccessible areas affected by the hurricanes, the FAA issued well over 100 specific authorizations – sometimes within hours of a request – to drone operators performing time-sensitive search and rescue missions or assessing damage to roads, bridges and other critical infrastructure in disaster areas. FAA Administrator Michael Huerta commented on the role of drones in the wake of recent hurricanes as a “landmark in the evolution of drone usage in the country.”

However, despite these beneficial uses of drones in emergency response situations, not all drone news in connection with recent hurricanes and other natural disasters has been positive. As in years past, drones made news this year for interfering with emergency responders fighting wildfires in California. Because helicopters and other aircraft supporting critical emergency response efforts can easily collide with drones – causing potentially significant damage, injury, and even death – emergency response aircraft must often remain grounded if unauthorized drones are spotted in the area. This significantly impairs the ability of emergency responders to do their jobs. Unauthorized drone use also threatened to impede efforts of the U.S. National Guard, Marines and Coast Guard to rescue and recover individuals in hurricane disaster zones. In fact, these incidents caused the FAA to officially warn on its website that flying a drone in or near a disaster area may violate federal, state, or local laws and ordinances, and that unauthorized drone operators may be subject to significant fines if they interfere with emergency response operations. Thus, while drones are playing an increasingly important role in disaster response, continued misuse of drones has also complicated rescue and response efforts in various respects.

The FAA also touted the continued expansion of commercial drone use across a variety of industries, including insurance, news and media, construction, mapping and surveying, and infrastructure inspection, among others. According to the FAA, uses of drones for scientific research, emergency response, and government infrastructure improvements are also rapidly expanding. Additionally, several companies, including Amazon, Domino’s Pizza, 7-Eleven and Flirtey, have attempted to spark consumer excitement for drones in recent months by demonstrating the potential for drone delivery of food and other consumer products.

At the same time, however, many in the industry lament the fact that the U.S. still seems to be years away from integrating commercial drone deliveries and other innovative drone uses into the regulatory regime, even while such uses are moving forward in other countries.  Indeed, the FAA has stated that – putting aside isolated publicity stunts – it does not believe that regulations for delivery drones will be ready until at least 2020, even while countries in Africa are currently benefitting from drone delivery systems transporting items such as blood and life-saving emergency supplies on a daily basis.

In addition to regulatory hurdles, part of the delay in drone innovation in the U.S. may be attributable to ongoing public skepticism regarding drones due to reported misuse of drones and their perceived potentially harmful impacts on safety and privacy.  For example, according to some reports, while 75% of consumers expect drone deliveries by 2021, only 44% said they liked the idea of drone delivery. Thus, despite the undeniable increase in commercial drone use over the past year under Part 107 – and the inevitable continued expansion over the next few years – fully realizing the many potential benefits and services drones can provide must still await slow regulatory and lawmaking processes and gain greater public acceptance of anticipated uses.

Ultimately, the FAA acknowledges that Part 107, as it exists currently, isn’t the end of the story – it’s the starting point. By 2021, the FAA estimates there could be as many as 1.6 million small drones in commercial operation throughout the country. There is still a lot to be done to realize the full commercial potential of drones, much of which will require increasingly complex drone operations (and correspondingly sophisticated laws and regulations), including for flights over people, operations beyond line-of-sight, delivery of goods, and even transportation of people. But, if commercial drone operations are to successfully accommodate the predicted increase in the number of commercial drones and expand on pace with expected innovations in the technology, it will require the coordination of many actors, including lawmakers at federal, state and local levels, drone manufacturers and operators, and greater acceptance by the public at large, to achieve.