I Agree With Elon: The FAA Doesn’t Do New Things Very Well

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In a recent tweet, Elon Musk said that the FAA’s regulations for space launches and rocket testing don’t fit today’s reality. The complex process is meant to enforce safety rules for the days when rockets were launched only a few times a year, and not an aggressive program like SpaceX’s Starship.

According to The Verge, the current dispute between Musk and the FAA came about when FAA officials said SpaceX violated its launch license, and they’re also investigating the last test as a “mishap.” If you didn’t watch it or don’t remember, the Starship SN8 test ended in an explosion when the rocket failed to land properly.

Being a test, it was expected that things would go wrong, but the FAA doesn’t see it that way. That may be why Musk says the current rules were meant for “a handful of expendable launches,” as an expendable rocket wouldn’t ever have a landing problem in testing (because they don’t land at all). Instead of being able to accept that the fireball was a successful test that gave SpaceX data to improve the design and operating procedures, current rules require them to treat it like an accident that must be investigated.

While you’ll find great coverage all over the internet of the ins and outs of FAA’s issues with SpaceX, I want to make a wider point about the FAA that affects not only space programs, but also the most popular form of electric aviation: small unmanned aerial systems, sUAS, or “drones.”

The TL;DR here is that the FAA is great at managing long-standing things like commercial airliners and general aviation, where rapid change isn’t happening . When it comes to a new aircraft or space technology, the agency struggles to do anything at all at first, and then is very slow at responding to the changes. This not only hampers the good that new technologies can do, but leads people to believe that the agency isn’t acting in the nation’s best interest.

Elon Musk feels that way right now, and I’ve had my own struggles with it in the past that made me feel the same way.

I’m going to talk about my experiences with the agency as a drone operator and then get back to SpaceX.

The FAA’s Slow Handling of Drones

Drones are definitely a technology that caught the federal agency flat-footed. Remote-controlled aircraft are nothing new at all, and people operated them for decades with the understanding that they weren’t subject to the same rules as aircraft.

What changed was what they were capable of doing. Older model aircraft weren’t very useful for anything but play in most cases. The technology to do anything useful like a military drone would do was too bulky and expensive for hobbyists and small business owners to get into. The computer and smartphone revolutions upended this quickly, though. Everything got cheaper. GPS got smaller and more accurate. Orientation sensors got cheaper and smaller. Electronic gimbals to stabilize cameras got much better and far cheaper. The computing power to manage all of this and make a quadcopter fly got smaller and cheaper. Finally, radio control got so good that it could handle all this and give the operator a first-person view.

The age of being able to use radio-controlled aircraft to make serious money came, and fast.

When this happened, the FAA decided that it wanted to clamp down, but didn’t go through the proper rulemaking process that applies to federal agencies. To create a new regulation, a regulator can’t simply say “these are the new rules” in a dictatorial fashion. They’re supposed to create draft regulations, put them out for public comment for a set period, and then, after considering the feedback, make any needed changes and make the rules final.

For commercial drones, it just said in a letter that unless one is strictly a hobbyist, that such flights were banned without getting a special certificate from the FAA. Many commercial operators would have gladly obtained such a certificate, but the agency only gave them out to government agencies. The regulatory process was not followed. This led to the FAA initially losing in court when it went after an operator, and many aviation lawyers (including mine) advised their clients that it was OK to fly as long as you don’t do anything that poses a real safety hazard, like operate in airport airspace.

At this point, many companies decided that because the agency had been swatted down by a court, that their drones would fly. The FAA didn’t go after anyone at this point unless they did something heinous, and would usually issue warnings. The administration knew that its position was fragile, and it tried to act carefully while trying to draft actual regulations.

It took until 2016 for the FAA to finally go through the rulemaking process and create enforceable rules. At that point, hobbyists had to register most drones over a certain weight and other pilots had to take an exam and get a license to operate legally. Rules improved further in the following years, and congress took action to clarify things further and streamline the processes a bit.

Now, the FAA is on top of things because technology isn’t catching it with its proverbial pants down. It is rapidly improving rules for things like safely flying at night, over people and vehicles, and even beyond where the pilot can see the drone well.

Remaining Errors In Drone Rules/Laws

While things are much better and clearer for drone pilots now, there are still problems that nobody can get the FAA to address because the processes and laws are still pretty new and there’s a big bureaucracy involved.

One great example is the rule banning drones over military bases. It’s a noble goal, and necessary, to not just allow anybody to fly a drone over military bases. We don’t want foreign operatives, terrorists, and other ne’er-do-wells to be able to legally fly over and see what’s there, or worse, use the drone for attacks of various kinds. Nothing would really stop a determined terrorist from doing bad things with drones, because they obviously don’t care about things like laws, but now it’s known that drones aren’t allowed over these bases and law enforcement can go after anyone doing it, assuming they can find them.

The problem came when the FAA and military officials got lazy about what data got included in the base bans. In some cases, the military’s real estate data was decades behind the times, leading to the FAA banning flight over places that the military sold years ago.

In the example picture you can see the main military base, a large triangle-ish shape to the right. To the left, you can see a more blocky shape where the black marker is placed. That’s what’s known as Castner Range, an area that the military handed off to the City of El Paso decades ago, and in some cases, sold off to developers. The little parts jutting off to the right of the main block shape are neighborhoods, city parks, and even a Walmart.

Somehow, the DOD and the FAA decided that these former military lands belong in the ban on flying over military facilities. You know, because a picture of some neighborhood, the local Walmart, and some hiking trails are going to hurt national security.

I could write ten articles about these mapping errors and out of date stuff that made their way into the drone rules that everyone has to follow now, but suffice it to say, the FAA still needs to put a lot of work in before the rules will be fair for drone operators.

It would be great if the bureaucracy could put a couple of people’s attention on looking through the drone maps, making some local calls, and identifying airspace restrictions that make zero sense.

What This Shows Us About the FAA

It’s clear that lawmakers and the bureaucracy itself needs reform. Technology moves fast, and we need the agency to actually do the job that voters and their representatives gave them. It is supposed to be making sure that air operations are safe, and shouldn’t be stuck in regulatory and legal molasses. Even on issues that Congress gave full authority to the agency for, there’s a culture of careful consideration (which we need) that isn’t tempered with common sense.

It’s common for federal regulators of all kinds to be behind the times and a big pain to deal with, so this isn’t a problem that the FAA exclusively deals with. Much of it isn’t the fault of any individual administrator, regulator, lawyer, or official. They’re all stuck in a bad system that keeps the agency from doing its job.

If it was all trivial, this wouldn’t be a big deal, but new technologies save lives. When we can’t save lives with new technologies because O. Fogy at the federal government is mired down by a plethora of conflicting and outdated rules, real people are hurt needlessly.

Perhaps Congress should pass a law creating a “Common Sense Department” in each regulatory agency that regulated businesses and hobbyists can contact to get bad or outdated rules a quick review. This department could be empowered to issue temporary rule changes for each situation they find lacks common sense, and those temporary rules apply until the normal regulatory process can incorporate the changes.

If something like that could happen, drone operators and space companies could get things done and the public would be safer as a result.