United States: Administration's Drone Pilot Program To Spur Innovative Drone Use

To promote the integration of drone technology, the White House's three-year Unmanned Aircraft Systems Integration Pilot Program partners the federal government with state, local, and tribal governments in the development, testing, and evaluation of drone regulations. The Pilot Program recognizes that nonfederal jurisdictions can and should provide meaningful input to the regulatory process. This Jones Day White Paper provides details of the Pilot Program and addresses probable questions relating to its implementation.

On October 25, 2017, the White House announced a three-year Unmanned Aircraft Systems ("UAS") Integration Pilot Program ("Pilot Program") under which the federal government would partner with state, local, and tribal governments to promote the integration of drones in ways currently limited by Federal Aviation Administration ("FAA") regulation. The program is designed to "test the further integration of UAS into" the National Airspace System in coordination with the private sector and with federal, state, and tribal governments.

This is a significant development because the federal government: (i) is putting down a marker in the oversight debate; (ii) sees an opportunity to relieve some of the pent-up demand to operate in ways not permitted, or requiring waiver, under FAA's small drone rules; (iii) may get real-world data that it can use in rulemaking; and (iv) is formally recognizing that other levels of government have a legitimate interest in regulating certain segments of airspace traditionally reserved to federal oversight.

Proponents of increased local regulation argue that drones are flown at lower altitudes, can take off and land nearly anywhere, are relatively inexpensive and easy to fly, and are generally flown close to the pilot. These unique characteristics, therefore, raise local concerns such as privacy, public safety, and interference with firefighting and police activities. They also argue that the FAA is not structured to handle the volume of cases or issues arising from drone use that are better left to local law enforcement. Conversely, advocates of a stronger federal approach are concerned about compliance with a patchwork of laws and its impact on commerce—which the federal aviation system is designed to prevent.

State and local governments have been actively legislating drone operations. According to the National Conference of State Legislatures, 38 states considered drone legislation in 2017.1 Bard College's Center for the Study of the Drone reported in March 2017 that 133 localities in 31 states had enacted drone laws.2 The Pilot Program's call for state, local, and tribal involvement recognizes and validates that nonfederal jurisdictions have a role to play in drone regulation.


The Presidential Memorandum charges the Department of Transportation ("DOT") with implementing a program that will: (i) "test and evaluate various models of state, local, and tribal government involvement in the development and enforcement of Federal regulations for UAS operations"; (ii) encourage development and testing of "new and innovative UAS concepts of operations"; and (iii) inform future federal drone guidance and regulations. DOT must enter into agreements with at least five state, local, or tribal governments within 180 days of establishing the Program.

On November 8, 2017, the FAA and DOT published a Federal Register notice3 providing more details about the application process. They have called for applications from state, local, and tribal governments in partnership with private sector and other interested stakeholders through the FAA's contracting process. Any state, local, or tribal government (broadly defined to include transit agencies, port authorities, planning organizations, law enforcement entities, and other political subdivisions) that is interested in participating (a lead applicant) must declare its intent to apply by November 28, 2017, via email to the FAA. Applications will be due January 4, 2018. Entities that do not provide notice to participate by November 28 will not receive access to the online application portal. Successful applicants will be required to enter into a Memorandum of Agreement with the FAA within five days of selection. Specific application information can be found here.

Proposals are limited to testing operations up to 200 feet above ground level or up to 400 feet if the Secretary of Transportation determines it would be appropriate. Pilot Program selection criteria are structured to ensure diversity of jurisdictions and types of operations, location of critical infrastructure, involvement of commercial entities, and community involvement and support for the program. DOT must also consider the applicants' commitment to innovation and economic development, transportation and workplace safety, improving use of drones in emergency response, and competitive and efficient use of radio spectrum. However, the DOT is clear that it is looking for "visionary participants" to meet the program objectives and is open to unique ideas.


Any entity that is not eligible to be a lead applicant but wants to participate in the Pilot Program may partner with a governmental entity. Those companies should take a couple of steps in preparation. First, they should consider the types of drone uses that would benefit their operations, where they would fly, and the data they could obtain. This will help them target governmental partners and provide them with information that they could use in their application. Remember that the Pilot Program is targeted toward facilitating uses that are not routinely permitted, such as beyond visual line of sight and operations over people. The DOT also has emphasized it is open to other unique proposals. In addition, flights may need waivers or exemptions, so identify if that information would need to be included in a proposal.

Second, interested parties should network with other private-sector and governmental entities. The FAA is facilitating partnerships by maintaining a list and encouraging social media interaction between entities that are interested in being part of a lead applicant's proposal. Those interested parties must email the FAA to be placed on the list and gain access to the social media site. Specific email formatting instructions are on the FAA's website. Companies should also reach out directly to governmental entities and other potential partners. Note that partners are not limited to being part of one proposal.


The launch of the Pilot Program raises several important questions for stakeholders and about the effect it will have on the regulatory landscape.

How Will Congress React to the Pilot Program?

The drone federalism debate in Congress is not a new one. Legislation affirming state and local governments' role in regulating drones was introduced in the 114th Congress, and bipartisan legislation was introduced again in both chambers this Congress, with increased support from state and local legislative groups. Drone industry stakeholders have fought these provisions. Reacting to the Pilot Program's focus on innovative use cases, both Senator Diane Feinstein (D-CA) and Congressman Jason Lewis (R-MN) have indicated they still see the need for increased local control, particularly to protect privacy.4 However, now that the Administration is formally exploring the idea of increasing local control over drone use, congressional leadership may be satisfied to wait for the results of the Pilot rather than implement a legislative solution, thereby keeping this controversial topic out of the FAA's pending reauthorization.

How Will the Pilot Program Affect FAA's Rulemaking Initiatives?

Rules to allow operations over people and beyond visual line of sight of the operator are considered the keys to enabling widespread cost-efficient drone use. Through the Pilot, the FAA will be able to obtain real-world data about safe drone operations. With this data in hand, the FAA should be able to move from concept to drafting rules more quickly and, if reliable, insulate the rules from substantive legal challenges. It is also possible that the data obtained from this program could alleviate law enforcement agency concerns about increased drone operations. The FAA indicated that its rulemaking agenda is the main driver of agency action regarding drones and will continue as the Pilot Project moves forward.

How Will the Law Enforcement Community Respond?

Elements of the federal law enforcement community have been vocal about the need to remotely identify drones as a prerequisite to liberalizing their use. The FAA's notice of proposed rulemaking addressing UAS flights over people, originally scheduled to be published in December 2016,5 brought these issues to the fore.6 The FAA endeavored to find a consensus solution by bringing the stakeholders together at the Remote Identification and Tracking Aviation Rulemaking Committee.7 In a nod to these concerns, the Presidential Memorandum directs consultation between DOT, the Department of Defense, the Department of Homeland Security, and the Department of Justice regarding mitigating safety and security risks, enforcement, and counter UAS testing. What remains to be seen is whether these agencies will work to limit the scope of operations allowed under the Pilot and the resulting tension that would create with the entities seeking to expand operations.

Local law enforcement has expressed uncertainty about its role in enforcing drone rules largely caused by the uncertainty over which level of government is responsible for drone regulation and the validity of local ordinances. The FAA published guidance for law enforcement agencies ("LEAs") promoting that federal and local officials should partner in responding to drone use in their communities,8 but it is clear that the Agency is not structured or staffed to respond as the "cop on the beat." Likewise, LEAs face resource constraints. As noted, the Presidential Memorandum affirms that state, local, and tribal governments participating in the Pilot Program have a role in supporting federal enforcement responsibilities; however, it is likely that LEAs in participating communities will be empowered only if the Pilot agreements establish clear parameters for drone use in that community and set clear enforcement roles.

To What Extent Will the DOT Permit Time, Place, or Manner Restrictions on Drone Operations Established under the Pilot Program?

The Pilot Program focuses is on expanding operations in ways that are currently restricted by the FAA. However, as shown by federal, state, and local legislation, and even by the FAA's charge to its Drone Advisory Committee,9 the question of state and local control of drones to date has largely focused on how those jurisdictions could limit drone use because of privacy or public safety concerns. The DOT contemplates that applicants may propose such limitations "to facilitate ... development and testing of new and innovative UAS concepts." The agency is signaling that an application strictly seeking to limit drone use is not likely to be successful. However, the exact parameters will be revealed as the selection process moves forward.

How Will Jurisdictions that Do Not Participate in the Pilot Program Respond?

Communities that are chosen for the Pilot will create a blueprint for what is acceptable to the federal government. This approach raises a number of additional questions. What will happen if nonparticipating jurisdictions implement rules limiting drone use that have been approved by DOT for Pilot participants? Will the federal government intervene to prevent those nonparticipating jurisdictions from implementing look-alike rules? Other than an FAA Fact Sheet providing guidance on the issue,10 the DOT, to date, has been reluctant to assert federal preemption over the many state and local government drone laws. Now that there is an established process for federal sanctioning of local drone rules, will they defend it, or do jurisdictions now have leeway to regulate drones, provided they mirror what the federal government has already agreed to in the Pilot?

Will the DOT Be Able to Keep Up with Demand?

Pent-up demand for commercial drone operations, and those requiring waiver, resulted in an overwhelming number of applications for "Section 333" exemptions and Part 107 waivers and authorizations. The individualized review required for those processes are time- and resource-intensive. On the other hand, the FAA was able to efficiently solicit and select the UAS Test Sites and UAS Center of Excellence. The Pilot Program's requirements to first provide notice of intent to apply and for applications to come from state, local, or tribal governments allows the Agency to anticipate the volume of applications and limit the universe of potential applicants. This may be an effective strategy for ensuring timely and individualized review of applications.


The Pilot Program is unique in that it allows state, local, and tribal governments to play an increased role in drone regulation with the approval of the federal government, without the federal government engaging in cumbersome and time-consuming notice and comment rulemaking. Although there are open questions about the Pilot, it is clear that this initiative bears watching, as it will likely have long-lasting implications for drone regulation in the United States.


1 See NCSL, "Current Unmanned Aircraft State Law Landscape" (July 25, 2017) (last visited Nov. 13, 2017).

2 Arthur Holland Michel, "Drones at Home: Local and State Drone Laws" (Mar. 2017) (last visited Nov. 13, 2017).

3 "Unmanned Aircraft Systems Integration Pilot Program— Announcement of Establishment of Program and Request for Applications," 82 Fed. Reg. 51903 (Nov. 8, 2017).

4 Michaela Ross & Sean Courtney, Trump's Drone Move Won't Stop Legislative Push, Bloomberg Law, Electronic Commerce & Law Report (Oct. 25, 2017).

5 See DOT, "Significant Rulemaking Reports by Year" (December 2016) (last visited Nov. 13, 2017).

6 See Michael Huerta, "Unmanned Aircraft Systems Symposium Opening Remarks" (Mar. 27, 2017) (last visited Nov. 13, 2017).

7 See FAA, "UAS Identification and Tracking Aviation Rulemaking Committee Charter" (May 4, 2017) (last visited Nov. 13, 2017).

8 See FAA, "Law Enforcement Guidance for Suspected Unauthorized UAS Operations" (June 5, 2017) (last visited Nov. 13, 2017).

9 See FAA, "Drone Advisory Committee (DAC) – Task Group (TG) 1 Recommended Tasking on Roles and Responsibilities" (Jan. 31, 2017) (last visited Nov. 13, 2017).

10 See FAA, "State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet" (Dec. 17, 2015) (last visited Nov. 13, 2017).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions