When the Atlantic published a long article over the summer examining Google’s autonomous drone development program in Australia, it noted that the country was chosen because “Australia’s ‘remotely piloted aircraft’ policies are more permissive than those in the United States.” More recently, Paul Misener, Amazon’s vice president of global public policy, wrote a letter to the FAA stating that “Without the ability to test outdoors in the United States soon, we will have no choice but to divert even more of our [drone] research and development resources abroad.” As noted last month by the House Transportation and Infrastructure Committee’s aviation subcommittee, countries like France, Germany, Canada, and the United Kingdom have more permissive laws governing drones than the United States. However, although the FAA Modernization and Reform Act of 2012 calls for the FAA to publish regulations addressing drones this year, the Government Accountability Office recently announced that those regulations will not be forthcoming until 2017 … or later.
This is a problem, particularly in light of the numerous drones that were on display at the recent Consumer Electronics Show—20 companies showcased drones this year versus four companies last year. Drones have the potential to spark major economic growth from research, development, and manufacturing. Unfortunately, the U.S. is almost actively pursuing legal and public policy agendas that alienate companies looking to develop commercial drones, pushing them to other nations. America is going medieval on its budding commercial drone industry, and not in the way we want.
To illustrate the connection between a country’s legal environment and its economic development, let’s turn to 14th- and 15th-century England. At that time, England’s manufacturing lagged behind that of many other European states. In an effort to lure skilled tradesmen, the English monarchy granted numerous monopolies and letters of patent to foreign artisans. This bolstered the nation’s fledgling manufacturing and helped develop the English cloth industry, the country’s first considerable manufacturing sector. The legal protections granted to foreign manufacturers also attracted armorers, shipwrights, glassmakers, producers of salt, and iron workers. According to Matt Fisher in Fundamentals of Patent Law: Interpretation and Scope of Protection, the public policy hope was that bringing these master craftsmen to England would promote native English manufacturers, partly by spreading knowledge to local apprentices who would become skilled manufacturers in their own right, helping to make the country self-sufficient. And although this system introduced its own problems—including numerous challenges from Parliament trying to rein in the crown’s monopolies—it effectively helped to lay the foundation for the rise of British industry in later centuries. By the end of the 16th century, England’s manufacturing development had caught up with or bypassed its continental rivals—including France and Germany.
It’s not hard to see history repeating itself here, with the U.S. as 14th-century Europe and England as, of course, England. The FAA has made it nearly impossible for private companies that are interested in developing drone technology to do so in the U.S. by insisting that its regulations prohibit essentially all commercial drone activity, even the testing of drones. Numerous other countries—including Germany and France—explicitly permit testing. As lucrative a market as the U.S. is—both in terms of talented engineers and potential economic activity for drones—companies that go where they can truly invest in drones can hardly be faulted, particularly when their executives claim that seeing delivery drones “will be as normal as seeing mail trucks on the road today,” as Misener claims.
The U.S.’s position is even more hostile to drone developers because the FAA’s claims are arguably in conflict with its actual regulations. As I’ve detailed before, the FAA’s legal right to regulate and restrict drone flights is very questionable. In Pirker v. FAA, a National Transportation Safety Board judge overturned the FAA’s $10,000 fine against Raphael Pirker, who flew a drone over the campus of the University of Virginia to shoot promotional video. The judge reasoned that the regulations and policy documents cited by the FAA do not grant the administration authority to govern drones. Although the FAA was recently successful on appeal, the fact remains that its regulations were not written with unmanned aerial vehicles in mind, and that, consequently, they do not address the strengths and flaws of the technology.
Helpful regulations would create an expedited and streamlined process for developers to obtain testing permits, identify large areas where test flights could safely occur, anticipate the commercial availability of drones for the public, and acknowledge the likely introduction of autonomous drones in the not-so-distant future. They would let developers create the foundation for a ubiquitous drone industry that will be a sizeable part of the economy over the next few decades. Most importantly, they wouldn’t let other countries swoop in and snatch the technology for short money—the cost of well-written regulations.
Assuming the FAA currently has the right to regulate drones, the administration should promptly, publicly, and forcefully change its policy toward test flights. First, such a change would let developers explore drones’ potential in this country. Second, permitting developers the chance to experiment with drones might help the FAA draft the regulations Congress required in the 2012 act. Developer input based on those flights and administration observations would likely be very helpful as the FAA writes the necessary rules, maybe even expediting the publication of those rules so that we can see them this year, as required by law. That can only help to keep the economic benefits of drones in this country. As the 14th century demonstrated, luring industry from one country into another can have longterm effects for both nations as those industries grow.