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Airport Law Alert - FAA Proposes Drone Remote ID Rule

As the number and uses of unmanned aircraft continue to grow, one of the most vexing problems faced by airport sponsors and state and local law enforcement agencies has been how to identify an unmanned aircraft in the air and, if necessary, track down its operator.  On December 31, 2019, the FAA issued a Notice of Proposed Rulemaking (NPRM) that puts forward a comprehensive framework for the remote identification of unmanned aircraft systems (UAS) but leaves many questions regarding the interface between the FAA and local law enforcement unanswered.

The proposed rule is primarily addressed at three segments of the industry: the manufacturers of UAS designed for operation in the United States; the operators of UAS; and third-parties who will be authorized by the FAA as “Remote ID UAS Service Suppliers” (USS), which will collect and store identifying and positional data from an unmanned aircraft and its ground control station.

Manufacturers would be required to certify compliance with one of two sets of performance-based specifications.  “Standard” remote identification UAS would publicly broadcast certain identifying and positional data directly from the unmanned aircraft, as well as transmit such data over the internet to a Remote ID USS.  A “limited” remote identification UAS would transmit its location and that of the ground control station to a Remote ID USS before it could be operated but would not broadcast this data during flight.  A “limited” remote identification UAS would not be capable of operation more than 400 feet from its ground control station.

Operators would be required to register each UAS using a unique serial number, in theory allowing the FAA and local law enforcement agencies to cross-reference data obtained from a UAS broadcast or a Remote ID USS to identify the operator.  But the NPRM does not explain exactly how this cross-referencing will work.  The FAA proposes to require a standard remote identification UAS to broadcast using a “non-proprietary specification” that is “interoperable with personal wireless devices,” without mandating a specific or single technology.  And while the “FAA envisions it would facilitate near real-time access to the remote identification message elements (paired with certain registration data, when necessary) for accredited and verified law enforcement and Federal security partners,” it does not propose to develop an official mechanism for that interface.  Indeed, in a footnote the FAA notes its “anticipat[ion] that in the future, third parties may develop mobile phone applications for law enforcement use.”

Amateur-built and certain other UAS that do not satisfy remote identification standards would be confined to specific “Identification Areas” established by community-based organizations, such as the Academy of Model Aeronautics, with approval and oversight of the FAA. 

Under this framework, a UAS operating outside of an established Identification Area will be required to be identifiable via its broadcast or, in the case of a limited remote identification UAS, by querying the FAA or a Remote ID USS through an as-yet unknown interface.  However, it is important to recognize that the proposed rule does not provide a mechanism to identify UAS that are being purposefully operated in violation of these rules.  The FAA notes, “Although remote identification of UAS may not deter nefarious actors, it would allow the swift interdiction of the clueless and careless persons manipulating the flight controls of UAS and shift law enforcement and security partners’ UAS protection efforts to the truly nefarious actors.”

As we have advised in previous alerts, the authority to intercept and disable nefarious UAS is, for the time being, still vested exclusively in federal law enforcement authorities, which generally lack the resources to respond promptly to a UAS-related security event.  It is critically important, therefore, that airport sponsors and state and local law enforcement agencies continue to work with their federal counterparts in developing timely response strategies to unidentified UAS operators.

Under the proposed rule, manufacturers would be given two years to develop compliant UAS, but the operation of UAS without remote identification would not take effect until a year later – three years after the proposed rule’s effective date. 

Comments on the proposed rule are due by March 2, 2020.  Airport sponsors and other state and local agencies should consider submitting comments on the proposed rule because of the unique role that they play in the national aviation system.  Airport sponsors are obligated to protect airspace in the vicinity of their airport and need to ensure prompt and reliable access to UAS remote identification information resources if they are to protect their facilities.  Airports may also want to address the complex division of responsibility regarding UAS enforcement and the challenges that unidentifiable UAS pose in the airport environment.

Airport sponsors who would like assistance in submitting comments or have questions regarding the proposed rule, may want to contact Eric Smith or Steven Osit.