A version of this interview is available at Drone360.
Lisa Ellman understands the challenges of regulating domestic drones. Between 2009 and 2014, Ellman served in a variety of high-level positions within at the White House and at the Department of Justice, where she worked on policy initiatives on issues spanning from open and transparent government to domestic drone use. Ellman led a push by the DOJ to develop policies that would govern the use of unmanned aircraft systems within the United States and, most recently, represented the DOJ on an interagency panel that addressed drone-related policy issues that are shared by departments and agencies across the federal government. During her time in government and now in private practice, Ellman has served as an eloquent and passionate conduit between technology companies and government in furthering the creation of sensible policies for integrating drones into the National Airspace System.
Lisa Ellman co-chairs the Unmanned Aircraft Systems Group at Hogan Lovells. We spoke with Lisa to get a sense of the challenges that government and industry are seeking to address in creating a space for commercial drone operations.
Interview by Dan Gettinger
Center for the Study of the Drone Could explain the kinds of projects you worked on while in the Obama administration?
Lisa Ellman My time in the government just taught me that there are a lot of hard working people in in the government and many of them are champions for innovation. The champions within government need the innovators’ help. They don’t necessarily understand the technologies, they don’t know what the use cases are, they don’t understand the potential for technology to solve a lot of our policy concerns. For example, how collision avoidance software could help solve a lot of our safety concerns with drones or how geo-fencing could help solve our privacy concerns with drones. That is where we need innovators to come and work with our policy makers. The reason the industry has generally been unhappy with the rulemaking so far is that the FAA or the federal government has decided only to go so far, due to the fact that we don’t have any data in this space.
It’s very rare not to have data or numbers to improve your rulemaking. With drones in particular, it is incredibly important for innovators to work with policymakers and to get involved with the public policy process so that we can have a better understanding and more informed policy making in order to move forward in a way that is safe and secure and mindful of people’s privacy. A lot of the work that I do is bringing innovators to the table and kind of translating between regulatory speak and Silicon Valley speak. We all want the same thing; it’s just a matter of how we get there.
It is incredibly important for innovators to work with policymakers and to get involved with the public policy process.
Drone We have noticed that a lot of the exemptions are really going to startup businesses that are going to provide aerial photo and video services to a range of industries. Is the drone industry going to be comprised primarily of established companies that are seeking to add on a drone capability or do you think that it’ll be an ecosystem mostly comprised of startups?
Ellman We are starting to see a lot of big companies apply for exemptions. I think that in the startup sphere, the energy has been really inspiring and fantastic. One of the things here that a lot of folks recognize is that the 333 exemption has turned out to be somewhat of a market depreciator. That is partly because several months ago, when you applied for a 333 you also had to separately apply for a Certificate of Authorization and you had to get special permissions to fly at a certain air space. There was a lot of bureaucracy for folks to handle. Over the last couple of months, the process has been realigned in such a way that the FAA is issuing some advance approvals, moving quicker through the process, and they are also issuing blanket COA exemptions when you get your approval. That means that, except within restricted airspace such as inside five miles of an airport, I can fly anywhere in the country. It has been really interesting to look at the 333 approval process; you see a lot of folks that are in certain industries and then you see a lot of folks who are applying just kind of what I would term ‘UAS general services.’ They can provide any service to any company and generally under the umbrella of aerial data collection and they can do that anywhere in the country. They figured out that there is a demand for these services and there is a demand for the legal provision of these services. The holder of a 333 exemption now has that ability, and they can do it anywhere across the country within the terms of their exemption. That’s part of the reason why we have seen this huge boom in startups providing aerial photography and videography services in all types of industries.
Drone By the time the FAA’s regulations are released in June 2016, we are on track to see several thousand 333 exemption holders. Do you think there really exists the demand for all these companies to be providing aerial photo and mapping services?
Ellman I think if the market wasn’t there, these folks would be unlikely to go through the hassle of applying for an exemption. I do think that the demand is there. Drone technology has improved at just the time that information technology has improved markedly over the last couple of years. That has resulted in drones that are cheap, mobile, and have credible abilities to help with everyday tasks. And so while drones were traditionally the realm of model aircraft and consumer toys, companies have really woken up to the fact that drones can be helpful to do a lot of the tasks they do everyday. From disaster response to delivery and agriculture to infrastructure inspection, drones can generally do these things more efficiently. It makes a lot of sense that companies want to be able to do this. Now, the exemption process is only a bandaid and it’s not meant to be a permanent solution. But thanks to the hard working people at the FAA for processing these things, it has proved to be a solution that a lot of folks are opting to pursue.
Drone What’s the point of approving all of these companies to operate drones commercially before the full regulations are in place?
Ellman For example, in order to obtain the 333 exemption, you have to have your manufacturer’s manual and you also have to have an operator’s manual. This is something where if a company is thinking, “I want to fly a drone, but I haven’t got an operator’s manual and I haven’t quite thought through what are all of those checkpoints that I have to go through to make sure this is safe.” The 333 exemption process has kind of established those processes as normal everyday things and allows companies to really do the due diligence in putting together their plan for UAS use in a way that I think is probably helpful.
There are certain restrictions on UAS use in the 333 exemptions that have been very frustrating for a lot of companies. I think we are not going to be able to truly take advantage of a lot of benefits of drones until we are able to fly beyond line of sight in congested areas or near people. The big restrictions in the 333 are that you have to be a manned aircraft pilot in order to fly and 500 ft. away from people. But then in terms of in terms of process, in terms of understanding airspace issues or what your business model is going to be, with a 333 exemption you have stepped in the right direction. If you have already started this task and have been operating legally for a while, you’re able to hit the ground running in a way that folks who haven’t been doing that will have to catch up at some point.
Drone It’s a bit like building those community standards that have governed the model aircraft community for so long.
Ellman Exactly. And the FAA has said that it wants the 333 process and what comes out of that process to really inform the rulemaking.
Drone What are the FAA’s biggest challenges when it comes to actually enforcing the rules?
Ellman You know, most of the work that I have seen or heard about has been anyone—whether it was a 333 exemption holder or a hobbyist—flying in a way that endangers the public. That’s where the FAA is going to spend most of its time. The FAA has limited resources and abilities to enforce. They rely a lot on state and local law enforcement officials to be their eyes and ears on the ground, if I am complaining that someone flew a drone over my backyard, or someone is just flying in a way that recklessly endangers the public. Because those people are flying very illegally. The near misses with airplanes, the wildfire situation. All those people are ruining it for responsible flyers who never do such a thing.
Drone What are the challenges for rulemaking and for commercial drone operators moving forward?
Ellman The two biggest hurdles for the industry right now are the beyond line of sight and being able to fly safely around people. I think collision avoidance technology and sense-and-avoid software are going to help get it there. The FAA Pathfinder program, where BNSF, PrecisionHawk, and CNN have partnered with the FAA to work at exactly these issues and to do research and development to figure out what technologies are necessary to move towards resolution of these issues. That was another welcome initiative coming out of the FAA and hopefully we’ll see a lot of progress on that over the next year. It is true that while the technology has moved forward quickly, in some ways it hasn’t moved quickly enough. We need to get to the point where we are very confident that UAS are safely beyond line of sight, safely above people, and that the policy making reflects this so that we are able to take advantage of many of the benefits of drones. In a lot of these use cases we need the ability to be able to fly near people in order to be able to take advantage of them. I see that as a five year project and over the next two years hopefully we can make a lot of progress.
It is true that while the technology has moved forward quickly, in some ways it hasn’t moved quickly enough.
Drone Last month, the Department of Transportation and the FAA announced that it was going to require that all drones be registered. What do you think of this new requirement?
Ellman If implemented appropriately in a way that doesn’t stifle innovation, the DOT’s announcement is a positive step. The hobbyist drone community self-regulated itself successfully for many years. But as drone technology has gotten cheaper and more widely available, there are hundreds of thousands of new hobbyists, many of whom don’t realize that a drone is not just a toy—flying it comes with important responsibilities to fly safely. With approximately a million drones expected to be sold this year for the holidays, and in light of recent events involving irresponsible flight near wildfires and airports, it’s unsurprising that DOT is interested in registering consumer drones.
The fact that this initiative is coming from DOT is suggestive of the high-level political attention the issue of drone safety is receiving from the Administration. There is a lot of excitement for the benefits of drones in government, but DOT’s primary mandate is safety, not innovation. FAA also has limited resources. So DOT is taking the lead. It’s great to have high-level attention to UAS integration issues, but we need to ensure innovators have a seat at the table to educate policymakers on how we can achieve this seamlessly.
There are lots of open questions – where to draw the line (surely there has to be some sort of “de minimus” exemption where the drone can’t fly outside) and how all this will be implemented. It’s important that manufacturers, operators, end users and hobbyists all have a seat at the table to make the process as streamlined and unburdensome as possible on the consumer side, so that it works properly and achieves the desired results without needlessly impeding innovation.
The mere act of registering may help educate folks that they’re not just buying a toy—that drone ownership comes with responsibility to fly safely, including not flying anywhere near airports. And it’ll help enforcement in some cases, where the vehicle itself can be identified.
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