The H.R. 302 – FAA Reauthorization Act of 2018 and the Future of UAS

October 2018

Amazon Prime Drone Deliveries Coming Soon?

This month saw a monumental event occur in Washington, D.C. And no, it wasn’t someone crashing a drone onto the front lawn of the White House; that occurred some time ago. Instead, the Senate, Congress, and President effected H.R. 302 – FAA Reauthorization Act of 2018 (the “Bill”), providing for 5 years’ worth of appropriations for the Federal Aviation Administration. The Bill represents the longest appropriations time period that the FAA’s Airport Improvement Program has had since its 1982 inception. And to top it off, it passed with a 92-6 vote in the Senate. Inconceivable!

The Bill contains some fun details like minimum size requirements for airline seats (Yay!), the outright banning of e-cigarette vaping on aircraft (Yay! Although I’m not sure how much of an issue it really was, email me if you have seen that activity going on), and no more putting live animals in overhead bins (Yay! And yes, although I’ve not seen it in person, I’m aware there was an incident).

“But Garrett,” you’re likely thinking, “what have they done to my precious drones?” You’re in luck because I know my audience and I know that my faithful readers want the meat and potatoes of the future of UAS here in the USA. While the Bill leaves many specific details up to the FAA to determine over the next year, the Bill gives us a general road-map for UAS in the future and benchmarks that Congress has directed the FAA to accomplish. So what does that road-map look like?

The first stop is to attend to the death of our dear longtime friend, Section 333. From the FAA Modernization and Reform Act of 2012 to October 5, 2018, Section 333 played a pivotal role in the development of commercial UAS activities in the United States. While its role had been diminished substantially by the passage of Part 107 in 2016, Section 333 continued to be the workhorse for those innovative operators of UAS exceeding 55 pounds. After such illustrious service, Section 333 was relegated to a simple, one line “repealed” status in the Bill. So long, my dear friend, and what am I supposed to do with my pending Section 333 application now? It is apparently up to the FAA to deal with that dead end.

In other, more notable news, readers beware – Congress has mandated that the FAA make your drone life more complicated and more ambiguous. Under a Section 333 exemption, commercial operators were required to use a pilot for their operations but in 2016, the FAA allowed you to pass a Part 107 test instead. Under the new Bill, we don’t have any sort of clarity whether there will be a grandfathering process applied to your current operations, but we do know that the Bill now requires that all users, even recreational users, pass an Aeronautical Knowledge and Safety Test which is to be implemented by the FAA by April 3, 2019. This test sounds much like the Part 107 requirement in that it requires an understanding of aeronautical safety and knowledge of FAA regulations and requirements pertaining to the operation of a UAS in the National Airspace System (“NAS”). While the Academy of Model Aeronautics (“AMA”) opposed many provisions of the Bill due to increased regulations of recreational UAS users, the AMA might well see its membership numbers explode with the express inclusion of recreational users adhering to a community standards requirement like those promulgated by the AMA currently.

And without further ado, I will answer the question that has likely been festering in that drone obsessed mind of yours: “When can we human overlords expect to receive personal deliveries of this month’s toothpaste, laundry detergent, and underwear by our flying robot servants.” Yes, that’s right, Congress has given the FAA until October 5, 2019, to update the existing regulations to allow for the carriage of property by operators for compensation or hire. It appears that my ultimate dream of having Terminator 3: Rise of the Machines delivered to my doorstep by a drone might actually come true prior to the complete obsolescence of my Blu-Ray player. Fingers crossed. Have you considered what your first delivery will be? How about a drone delivering a drone to you directly? Or perhaps Dominoes will perfect the aerial pizza delivery so that I won’t have to see those ridiculous pothole fixing commercials anymore.

One last mention regarding drone deliveries, Congress has included in the Bill a completely ambiguous proviso that, “a violation of a privacy policy by a person that uses a UAS for compensation or hire, in the NAS shall be an unfair and deceptive practice.” (FAA Reauthorization Act of 2018, Section 375(a)). I’ll let you ruminate on that one and on what consequence there might be for an unfair practice until we get some more clarity from the FAA as to what entails a violation of a privacy policy. Interestingly, this is the first time that we’ve seen Congress mention on an area that remains a highly contentious and discussed arena in UAS operations – that of the privacy rights of the human overlords.

Congress has also directed the FAA to build a major highway down a previously uncharted path in NAS integration. Notably, the FAA needs to prioritize the incorporation of UAS operations occurring (i) beyond the visual line of sight, (ii) during the nighttime, and (iii) over people. These are long overdue and will be welcomed by the UAS community. Also, Congress has asked that the Secretary of Veteran Affairs, Secretary of Defense and Secretary of Labor opine to the FAA whether UAS technology and regulations can be incorporated into the Veterans Employment Program. This seems like a no-brainer as there are many veterans that have extensive UAS operational experience that would be welcomed into the commercial UAS field.

In summary, we’ve got more stability than we’ve seen thus far in the roadmap for UAS integration into the NAS. While there is some understandable disgruntlement among the UAS users, especially hobbyists who now must take an additional test, a 5 year period of stability may allow for the exponential growth of commercial UAS activities in our lives. And with that, I say “hurrah” and farewell until we see more definitive regulations from the FAA arising out of Congress’s biddings in the Bill.

For questions or additional information about the FAA Reauthorization Act of 2018 contact Garrett Caffee at garrett.caffee@fmjlaw.com.