ANALYSIS/OPINION:
Last year, the FAA was in a pickle. Drones were expected to be hot Christmas items, but a 2012 statute barred the agency from creating regulations on recreational drones.
In December, the agency created the first recreational drone owners’ registry anyway and made it a crime punishable by up to three years’ imprisonment to fly a drone without first registering as a drone owner.
How? By pretending decades of policy exempting small model aircraft from federal aviation rules did not exist. For the first time, the Federal Aviation Administration officially determined that drones are “aircraft” subject to federal law and insisted that the registry was not a “new” regulation and therefore not banned by Congress. Never underestimate the willingness of federal bureaucrats to twist themselves into knots to expand their authority.
Even children with handheld drones weighing a mere 0.55 pounds must register or face stiff civil and criminal penalties. Adding to the absurdity, the registry took effect one week after it was announced, just days before Christmas. The risk of creating hundreds of thousands of inadvertent federal felons was not enough to dissuade the agency.
Neither was the fact that federal laws governing aircraft were written to cover manned aircraft, not unmanned drones. To fully comply with the law, drone operators must adhere to such provisions as a requirement to post “within” the drone a copy of the registration, an airworthiness certificate and other documentation, and display these “at the cabin or cockpit entrance so that it is legible to passengers or crew” (14 C.F.R. 91.203(b).17).
That’s nonsense, of course, since recreational drones have no cockpits and aren’t even issued airworthiness certificates. The most common models weigh only a few pounds and cannot fly farther or higher than a remote signal and the limits its batteries allow. They break when you step on them.
Actual aircraft can fly across oceans, miles above ground and, crucially, carry human passengers and crew. The FAA pretends these differences do not matter. But just consider one law, 18 U.S.C. 32, which makes it a crime to damage or destroy an “aircraft.” You could spend the next 20 years in federal prison for accidentally stepping on a toy.
If that seems odd, “ultralight aircraft” weighing less than 245 pounds, carrying a human pilot and a few gallons of gas are exempt from federal registration requirements, but children with toy drones in their yards are not. All signs point to an agency so determined to regulate drones that it was blind to the inconsistencies, ambiguities and mismatched criminal penalties its actions created.
The FAA has moved on to commercial drones, issuing 624 pages of new regulations. Some of the provisions make sense, such as limits on the altitudes at which drones may fly.
Others are unduly burdensome. Drone operators must travel to an FAA facility to take an aviation knowledge test to earn a remote pilot certificate and be vetted by the Transportation Security Administration even if all they want to do is use a drone to photograph a wedding.
Further prohibitions — on flying beyond the operator’s line of sight or flying more than one drone simultaneously — will slow development of technologies such as drone delivery and disaster relief. Amazon and Google have already taken their drone development overseas. These hypercautious rules will continue to deprive Americans of new and revolutionary uses of drones.
In 2010, President Obama trumpeted an “essence” of America “that has permeated our land and inspired generations of Americans to explore, discover and redefine the outer reaches of our infinite potential.” But it is hard to square that sentiment with 300,000-plus federal criminal regulations and a rampant bureaucracy that forces entrepreneurs to get government permission slips to innovate.
The FAA’s drone rules are only the latest examples of the creeping overcriminalization and overregulation that threatens to tame America’s dynamic spirit.
• Jason Snead is a policy analyst and John-Michael Seibler is a legal fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation (Heritage.org).
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