In furtherance of a 2018 request from the Aerospace Industry Association ("AIA"), the Wireless Telecommunications Bureau ("Bureau") of the US Federal Communications Commission ("FCC") has resumed its examination as to how best to license unmanned aircraft systems ("UAS") or drones. On August 20, the Bureau released a Public Notice1 seeking updated public input on the feasibility of permitting Line-of-Sight ("LOS") and Beyond-Line-of-Sight ("BLOS") drones to access the 5 GHz spectrum band. Specifically, the Bureau requests information regarding the latest operational, technical and regulatory developments "in the rapidly growing and evolving area of UAS operations," adding that "the resulting record could help the Commission to proceed with a more informed and specific Notice of Proposed Rulemaking to make the frequencies between 5030 and 5091 MHz available as a suitable spectrum resource for UAS operations."
Against this backdrop, the Bureau seeks updated information pertaining to the following issues:
Dynamic frequency assignment. The 2018 AIA proposal anticipated a dynamic frequency assignment system whereby requests for permission to operate in the band would be made a short time before the expected flight and terminate automatically at the end of the estimated flight. The Bureau's Public Notice seeks comment on the feasibility and practicality of implementing and operating a dynamic frequency assignment management system, which would automatically process requests from UAS operators for temporary bandwidth assignments. The Bureau asks "what connections or communications between the frequency assignment management system and UAS stations will be needed to implement these processes" and whether this procedure would "occur in a manner that is secure, reliable, and timely." Likewise, the Bureau asks whether "any current or planned [system] could perform the necessary functions" and whether such system is "scalable to meet the real-time coordination needs of a large and growing number of operations."
Licensing. The Bureau seeks comment on a wide range of questions surrounding and potential options for licensing UAS operations. First, the Bureau seeks comment as to licensing operators on an individual basis; however, the Bureau notes that UAS operators would be subject to applicable Federal Aviation Administration ("FAA") oversight and thus asks whether individual operating authorizations should face a duplicative FCC requirement.
Thereafter, the Bureau notes the growing interest in and exploration of BLOS operations—"such as for package delivery, mapping, search-and-rescue, long-range infrastructure inspection, and surveillance flights"—and broadens the inquiry in order to best ensure that FCC action in this area would provide "sufficient scope and certainty to incentivize the deployment of network infrastructure that can support both LOS and BLOS flights." Accordingly, the Bureau seeks input as to the advantages and disadvantages associated with various geographic licensing scenarios, seemingly with an eye toward ensuring that the new rules would be future-proofed at the outset.
Technical requirements. Next, the Bureau asks for input on "the appropriate technical requirements and parameters" as to transmitter power and emissions in the 5030-5091 MHz frequencies and notes discrepancies between different possible power and emissions limits that may be applicable to UAS operating within the 5 GHz band.
Scope of permitted service. Finally, the Bureau notes that the present allocation of the band to aeronautical mobile services is limited to "only communications relating to the safety and regularity of flight" and therefore asks whether and, if so, what types of UAS would fall within this classification. Here, the Bureau suggests the possibility of adopting an approach "that combines a broad scope of permitted communications with a prioritization mechanism." Commenters are encouraged to advise as to whether the proposed band allocation should be modified to permit payload and/or non-UAS general purpose mobile communications on a secondary basis.
Analysis. While drones have been in use since the 1990s, their roots date back to World War I, when the United States and other allies coordinated efforts to develop unmanned airplanes. According to Business Insider, drones are beginning to attract new customers, especially in areas where they would increase and improve work efficiency and productivity functions. Retail drone shipments are expected to top 44,000 this year and to reach over 1.2 million by 2023.
The FCC activity is a boost for the drone sector's important effort to identify and overcome regulatory and other barriers to entry. Not only does the Bureau refresh the stalled AIA proposal, the breadth of questions set forth in the Public Notice updates and improves upon the AIA proposal—for example, expressly acknowledging the benefits associated with BLOS drone flights—on top of the economic efficiencies, environmental and other scientific advances, and enhanced security functionalities. Also, by raising real-world scenarios, the Public Notice takes a practical approach, lays out a reasonable course and conveys a strong interest in moving ahead to develop a licensing protocol (or protocols) for drone uses.
As to next steps at the FCC, the period for comment will be established on the date that the Public Notice is published in the Federal Register. Comments will be due 30 days after publication, and reply comments will be due 60 days after publication. We expect these deadlines to fall somewhere between September and November 2021.
1 Wireless Telecommunications Bureau Seeks to Refresh the Record on Unmanned Aircraft Systems Use of the 5 GHz Band, Public Notice, DA 21-1025 (rel. Aug. 20, 2021).
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