“My response to the FAA was to piss off . . . .” These words were uttered recently by the President of an Orlando Company that uses UAS to film concerts and TV commercials. What makes the statement either brave or foolhardy, depending on your point of view, is the fact that they were said to a major news organization, The Wall Street Journal . The company President went on to state that “if the agency sends a formal cease-and-desist letter, ‘I’d probably frame it, hang it up on the wall and keep going about my daily business.”
This sentiment reflects the daily death-of-a-thousand-cuts the FAA’s UAS policy has been suffering for the last few months. One of the fundamental realities facing any regulator is that inspectors cannot be everywhere and oversee every operation. As a result, regulatory schemes are supported by two pillars: voluntary compliance and public enforcement.
In order for voluntary compliance to be effective, the regulated have to understand the requirements, have an appreciation for why the regulation is necessary, and respect what the regulator is attempting to accomplish. If the regulated see the regulation as arbitrary, unnecessary, or counterproductive, they lose respect for the agency and the regulators, and they view the agencies goals as illegitimate and unimportant. Once this mindset takes over, then it becomes easier for the regulated to rationalize non-compliance as actually being the morally superior course of action.
To a certain extent, the second pillar, public enforcement, can be used to prop up the regulatory scheme even in the face of wavering compliance. The agency can use fear of fines or even jail time as a deterrent, but the occasional high profile prosecution can still leave someone with the lingering thought that “the inspectors can’t be everywhere,” and “what the agency doesn’t know won’t hurt it.”
Neither pillar is currently supporting the FAA in its UAS efforts. The Pirker appeal has left the public with the impression that the FAA is powerless to punish. Moreover, frustration mounts daily at the continued delays in the rulemaking process. As a result, the current ad hoc system of authorization is increasingly viewed by operators as arbitrary, burdensome, and unnecessary.
There may be, however, some relief in sight. Jim Williams, the head of the FAA’s unmanned aircraft office, said yesterday at the AUVSI conference that the agency may finally begin using its authority under Section 333 of the 2012 FAA Act to grant wider approval for certain industries, such as film makers, agriculture, and utilities. While this is a welcome development, it is unlikely to stop the bleeding for long, and the FAA may find more and more people willing to publicly tell it to “piss off.”
(Originally posted May 14, 2014)