The Trump Administration has proposed that Air Traffic Control (“ATC”) functions be shifted away from the FAA to a nonprofit, nongovernmental organization, arguing that the move would allow for increased efficiency particularly in terms of modernization by changing the ATC system from radar-based to satellite-based. If adopted, this plan could accelerate the safe integration of unmanned aircraft systems (“UAS” or drones) into our national airspace system (“NAS”).

The Proposal: Who, What, When and Why

On Monday June 5th, 2017, the President announced that his administration would seek to overhaul the country’s air travel system by privatizing ATC. The proposed plan would create a private, nonprofit corporation that would operate, manage, and control ATC nationwide, in a similar vein to the Canadian system. The FAA would maintain oversight, but a board made up of various stakeholders such as pilots’ unions, representatives of major airlines, and air traffic controller unions, would govern the corporation.

Advocates for this new plan argue that privatization would be a solution to the FAA’s slow pace in upgrading the ATC system, which currently uses radar- and voice-based technology. They also explain that allowing ATC to operate under the federal government means that funding is uncertain, because it gets entangled in political battles over the budget. This uncertainty makes long-term investments in new technology difficult, thus slowing down the modernization process. A new nonprofit entity could implement the satellite-based ATC system, NextGen, more efficiently, because theoretically the nonprofit would be less likely to be subject to these political budget battles.

How Does That Impact Drone Traffic?

Creating a way to safely integrate drones into our NAS is one of the main challenges for expanding commercial drone use, and would specifically facilitate the development of drone delivery. Currently, drone operators must maintain visual line-of-sight at all times and can only fly during daytime, unless the FAA grants a waiver. A shared, nationwide Air Traffic Management (“ATM”) system would allow people, or companies such as Amazon, DHL, or UPS, to operate drones beyond visual-line-of-sight.

A variety of organizations, including NASA and Google’s parent company Alphabet, are already working on ATM systems to integrate drones into the lower airspace system below 400 feet. NASA completed successful tests as part of their three-week Technology Capability Level 2 campaign earlier this month, flying five different drones and demonstrating multiple operational scenarios flown beyond the operator’s visual line-of-sight. Alphabet’s Project Wing tested their new drone traffic control platform at Virginia Tech, successfully tracking the flight paths of multiple drones simultaneously and allowing the drones to automatically steer away from each other without the operator needing to manually avoid collision.

In addition, ATC privatization could positively impact the integration of drones into our NAS by speeding up the process and making it more efficient. For example, the nonprofit entity could contract with companies such as Alphabet or work with NASA to build on the existing ATM progress as opposed to the FAA attempting to build an ATM system of its own.

While privatization could be a positive catalyst for growth in the UAS industry, several concerns remain. It is still unclear whether ATC privatization would equate to increased speed or efficiency. Ultimately, the FAA will retain oversight and will have to dictate rules on beyond visual line-of-sight operations. Further, a private entity may want to see more evidence of demand before investing in integrating drones into the NAS, creating a conundrum. Without beyond visual line-of-sight capability, the UAS industry may find it challenging to demonstrate the level of demand that a private entity would expect for UAS integration to be a priority. This could lead to delayed investment, especially since members of the UAS industry may not be included on the nonprofit entity’s board. Yet, members of Congress have expressed concerns over ATC privatization, and it may never see the light of day. Last week, Democrats on the U.S. House Transportation and Infrastructure Committee introduced legislation to give the FAA more stable funding while rejecting privatization efforts. This step signals that privatization may not make it through the Senate where Democrats have the power to block the measure.

It is understandable for the UAS Industry to be cautiously optimistic about ATC privatization, but it may be too premature to assess how much of an impact it will have on UAS integration. Whether or not privatization can garner enough bipartisan support to make it to the President’s desk is still unclear; and if it does, the FAA will have to address several regulatory hurdles. Considering it took over four years for Part 107 to finally take effect, the idea that ATC privatization will soon clear the way for a UAS ATM system appears unlikely.