FAA's Crazy, Cumbersome (And Odd) Drone Rules Cripple Commercial Users

P. Gardner Goldsmith | June 21, 2016
Font Size

The rusty old saw, “What’s good for the goose is not good for the gander,” seems perennially applicable in political-economic circles. Take drones, for example.

On June 21, the Federal Aviation Administration (FAA) issued its long awaited “rules and regulationspertaining to the private, commercial use of drones (also known as Unmanned Aircraft Systems, or UAS) over soil in the United States. The FAA was so slow that business owners and individuals have delayed investments, lost money waiting, and lost out on years of innovation for consumers - and the bureaucracy still is not done grinding its merciless gears. It plans more unconstitutional mandates  -- mandates that stand in stark contrast to the rules the federal government gives itself when it comes to the use of drones.

In pitiful displays of Stockholm Syndrome, some business owners are actually thankful that their overlords at the FAA are finally laying out a few of their orders and punishments for non-compliance. Perhaps this is understandable, given how much money is at stake for businesses seeking to work with, or sell, drone technology. It could have been worse, they say, and, indeed, since the FAA originally threatened to force any commercial drone flier to become a fully-licensed pilot, so the orders here are not as insane as they could be.

But they are very, very bad.

For example, according to the new “rules”, “(s)mall, unmanned aircraft may not operate over any persons not directly participating in the operation…”

This is pretty much impossible for the operator to ascertain with 100% certainty.

The new rules also mandate that small, unmanned aircraft my not operate, “… under a covered structure, and not inside a covered stationary vehicle.”

So, hey, all you drone manufacturers out there, and all you folks who want to test them in your garages or in warehouses, and all you rock bands like MUSE who use them in big stadiums… Ixnay on the indoor drones.

But the FAA isn’t done there. According to their orders, anyone trying to fly a commercial drone must:

  • Be at least seventeen years of age,
  • Pass an “aeronautical knowledge test,”
  • Be vetted by the TSA (because, you know, they’ve stopped so many bad guys from committing crimes), and
  • Use visual line of sight only - No pilot can fly a drone beyond his ability to see it, over the horizon, or use a camera on it to remote operate the way the US government and subsidized police do.

And, of course, the FAA is still waiting to decide whether to let companies like Amazon, Dominos, UPS, and Fed-Ex use drones to deliver products to willing buyers.

All of this begs lots of questions, the first of which is: “Where do the bureaucrats in the FAA get the legal power, let alone the moral standing, to tell people they cannot fly drones in their own garages?”

Their claim to the air throne began in 1925, when the feds established the “Air Mail Act.” Through it, the United States Postal Service (USPS) set up what were called “Lighted Air Routes” for planes flying airmail. These were comprised of big towers with lights atop them, set up every few miles to allow pilots to use visual flight rules (no RADAR at the time) for travel at night. The USPS proceeded to ban any of the budding commercial lines from flying those routes. From there, using the oft-misused “interstate commerce clause” of the Constitution (in Article One, Section Eight), the precursor to the FAA began in 1926, when the anti-constitutionalist Calvin Coolidge signed the Air Commerce Act. And then it was just a matter of time (and pork spending) until the feds showered cash on local politicians and constituents to build airports, regulate routes and do everything they could to pretty much make the US air travel system as un-economical and burdensome as possible.

When pushed on this, supporters of the FAA (named in 1958) often claim that, since airplanes could go over state borders, they are part of “interstate commerce” and can be regulated. But, in his book “Makers and Takers,” Edmund Contoski observed that James Madison, who took notes on the Constitutional Convention, said that the clause was not to be used, “for… positive purposes,” but as “a negative and preventive provision against injustice among states (as governments) themselves.”

In other words, unless states were in conflict over air travel, Congress was supposed to stay out of it.

Even if the ever-broader interpretation of the clause were valid, serious questions would loom:

  1. How can bureaucrats claim to control how someone flies a drone in his own garage or over his own property?
  2. How can they order all people who simply own them to "register" them, or face a fine of up to $250,000?
  3. And, how do they think this will stop people intent on using them for nefarious purposes?

The feds have created an increasingly unworkable, non-market system that takes too long to respond to technological developments and infringes on private property rights. In that way, the FAA is precisely like the Federal Communications Commission, which began in the 1920s as the Federal Radio Commission and delayed the licensing of television for five years because of the cozy relationship “regulators” had to big radio business interests. The feds unconstitutionally claimed the power over the radio spectrum and they have used it as a money maker and political hammer ever since.

This all happens while the feds tell us they’re helping. According to the FAA press release, the federal government mandates will create new jobs. Seriously. Here’s what they claim:

“…(T)he rule could generate more than $82 billion for the U.S.. economy and create more than 100,000 new jobs over the next 10 years.”

‘Cause, you know, threats and legalized extortion lead to productivity and consumer satisfaction.

Some might respond, “Sure, the feds have come up with dumb ideas here. Sure, it’s not really sanctioned by the Constitution, but air routes and air travel need rules. Without the FAA, there would be chaos.”

This is specious. There are essential incentives and disincentives for airlines to work out safe and efficient routes. The safer and more efficient their routes, the more their customers will be pleased. The more customers who are pleased, the better their profits. The more dangerous and less efficient their routes, the lower their customer satisfaction will be, and, of course, the lower their profits. The FAA and the TSA are unnecessary; insurance liabilities and market demands would incentivize private industry to create better and more customer-oriented safety protocols.

Likewise, commercial companies using drones have incentives to behave responsibly. Drone manufacturers have incentives to make safe products. If they hurt people or damage private property, they can be held liable, and would have even stronger liability protection if allowed to operate without government nanny statism.

What the FAA has done is smother the system that could arise in a privately-arranged air route market where people could give their permission for flyovers, or even charge for them.

Meanwhile, during a time when Congress has not issued a Declaration of War, the US military not only uses Predator and spy drones in other nations – taking years before reporting how many it has killed each month -- but, it has also used surveillance drones in the US, and handed out millions of dollars worth of unmanned air vehicles to local law enforcement to spy on civilians.

Perhaps the feds should do some self-reflection when it comes to telling others what do to with unmanned aircraft. The bureaucrats at the FAA certainly like to “regulate,” so maybe, just maybe, they could apply their rules to the people in the White House who keep pushing for their own, special, uses of drones.