U.S. Department of Robots? Ground and Sky Regulations Converge

Two of the most talked about areas of innovation over the next five to ten years are driverless cars and unmanned aircraft (more popularly called drones). Despite the superficial similarity between these two categories of autonomous vehicles, there are a number of technical challenges that distinguish them. Driverless cars have to contend with far more obstructions than pilotless aircraft, for example, and the embedded base of operators is far larger for automobiles.

But perhaps the biggest gulf between these two technologies isn’t under the hood; it’s in how they are regulated. This week, the U.S. Department of Transportation (DOT) took a big step toward closing that regulatory gulf. Combined with actions taken by the Federal Aviation Administration (FAA) earlier this year in Part 107, DOT’s actions raise the possibility of further convergence in the regulation of robots in the air and robots on the ground.

The federal government has long played the primary role in the regulation of aircraft, both in terms of how they can be sold and how they can be operated. Federal rules have traditionally required pre-certification of new aircraft types, have dictated the licensing requirements for those who pilot them, and prescribed the way in which traffic moves in the skies. To this end, federal law has broadly preempted any local attempt to regulate the operation of aircraft, the design of the aircraft itself, and liability from product defects.

In contrast, driving has received a much lighter regulatory touch from the federal government. States and localities maintain control over licensing and traffic laws, which can vary widely from place to place. While the federal government sets safety standards for cars, known as Federal Motor Vehicle Safety Standards (FMVSS), these standards rely on self-certification by automakers rather than regulatory pre-approval, and courts have struggled with whether these standards preempt state liability.

Two recent actions by regulators signal the prospect that this schism in regulation may be narrowing. First, in August, FAA rules took effect that loosen some of the agency’s traditional restrictions as they apply to certain small unmanned aircraft. Operators of these aircraft no longer need Part 61 pilot’s licenses, and are instead subject to a less onerous certification procedure.  Moreover, these small unmanned aircraft no longer require pre-approval through type certification.

Second, this week the DOT announced its policy guidelines for driverless cars . In order to prevent the proliferation of inconsistent state regulations, these guidelines establish a clear line of federal authority—whenever a vehicle is operating under autonomous control, it will be subject to federal rather than state regulation. While this follows logically from traditional federal control over vehicle safety standards, it also represents an expansion of federal authority into the actual operation of automobiles, an area that traditionally has been the province of state law. The DOT signaled that this shift may bring with it greater preemption of state laws, though it has also urged the states to act together to adopt consistent regulations of their own. In addition, the DOT has suggested that it may seek additional authority from Congress in order to conduct its own pre-approval of certain new technologies. If aircraft regulation is a guide, that may mean clearer preemptive force, as well.

Big questions remain about how—and even whether—these regulations will converge further in the future. Small unmanned aircraft are only one piece of the drone puzzle, and truly autonomous (as opposed to remotely operated) aircraft pose their own technical and regulatory challenges. While there is a long history of field preemption in this area, states and localities are anxious to regulate, and it is unclear how those disputes will be resolved. Driverless cars are also in their infancy. The federal government’s attempt to assert authority and bring uniformity to the regulation of these vehicles has received praise from industry, but states and localities may push back and seek to establish their own policies and procedures.

Nevertheless, there are real similarities in the issues raised by autonomous or semi-autonomous vehicles, whether they are on the ground or in the air. The development of these new technologies will challenge existing regulatory paradigms and require innovative thinking on the part of regulators in order to balance innovation with safety, and local involvement with national uniformity. It makes sense that as existing structures are re-evaluated and new regulations are put into place, further convergence will occur.

Only one thing is certain: No one hoping to keep abreast of regulation in this space can afford to be on autopilot.


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