Article by Joe Vacek
We’re trying a reconfiguration of our former newsletter/journal, which will be a shorter piece delivered to you monthly instead of quarterly. This month, I’ll kick it off with a comment relevant to anyone whose client operates drones: The Remote ID Rule.
FAA now requires anyone operating a drone to broadcast a “digital license plate” via Remote ID technology installed on the drone. Despite the rule’s effective date being delayed by the FAA and by litigation last year in BRENNAN V. DICKSON, 45 F.4TH 48 (D.C. CIR. 2022), the requirement is on track to be in force on September 16, 2023. That means all drone operators will need to be compliant to operate in the National Air Space, outside special drone-only parks for enthusiasts, otherwise known as “FRIAs.”
New drones come with the required hardware and software installed to be compliant. Older models need to be retrofitted, and the cost is not unreasonable--spending between $100 and $200 will purchase a module that can be easily added to an existing drone and is compatible with US, Canadian, and EU remote ID requirements. They do add a bit of weight (1-2 oz) and power consumption, which will slightly reduce the drone’s performance or endurance.
Make sure your clients know about the requirement and are compliant, as willful non-compliance can result in FAA enforcement actions beyond a compliance action, up to and including revocation and civil penalties.
Personally, I have wondered how FAA will detect and locate a non-compliant drone, since one not broadcasting its “digital license plate” is essentially running dark. I would suggest acknowledging this with your client, along with a reminder that compliance is generally cheaper than paying you in an enforcement action!
The BRENNAN case mentioned above was a facial challenge to the rule’s constitutionality; the DC Circuit held that there was no 4th Amendment violation in requiring drone operators to broadcast a “digital license plate” because they were operating in public airspace. The Court left unresolved however the question of whether low altitude airspace--airspace that the U.S. Supreme Court has decided belongs to the landowner--is navigable or not, and whether FAA has regulatory authority over that low altitude airspace. Until that issue is ripe and decided, even drone operators flying down low right over their own field must comply with Remote ID.
A longer version of this in law review format is available at https://law.und.edu/_files/docs/ndlr/pdf/issues/98/2/98ndlr233.pdf