On September 10, 2019, we published an article on the anticipated regulations regarding remote identification and tracking of drones in Canada and the United States. Since that article was published, the US Federal Aviation Administration (FAA) published a notice of proposed rulemaking (the Proposal) to establish requirements for the remote identification (remote ID) of unmanned aircraft systems (also known as drones) in US airspace. The FAA received over 53,000 comments on the Proposal during the 60-day comment period, which ended on March 2nd, 2020. The final rule was published in the Federal Register on January 15, 2021, and came into force April 21, 2021. Manufacturers must comply with the new regulations by September 2022, and operators must comply by September 2023.
Does this move by the US have any bearing on what may happen in Canada? As of yet, there has been no announcement of remote ID regulations in Canada (similar or otherwise).
What is remote identification?
Remote ID is the ability of a drone to electronically broadcast certain identification and location information during flight to receiving parties (either on the ground or in the air). Remote ID technology could provide aviation administrators such as Transport Canada, the FAA, air navigation service providers, and law enforcement with real-time information about the location of a drone and about its pilot.
Remote ID is an important step for the development and foundation of a drone traffic management system (also referred to as UTM), which in turn assists with the commercialization of drones and beyond visual line of sight (BVLOS) operations.
Overview of the FAA’s final rule on remote ID
The Final Rule requires the drone to broadcast a “digital license plate” over WiFi and/or Bluetooth if the drone must be registered with the FAA. This “digital license plate” must be accessible in near real-time, and must be designed to have its broadcast range maximized. Certain message elements must be included in the digital license plate. Drones that weigh less than 0.55 pounds (or 250g) or those flown pursuant to the rules for recreational flyers do not need to broadcast their remote ID.
There are three ways that drone pilots can meet the identification requirements of the remote ID rule:[1]
- Operate a Standard Remote ID Drone – A Standard Remote ID Drone is one produced with built-in remote ID broadcast capability that broadcasts identification and location information about the drone and its control station.[2]
- Operate a drone with a remote ID broadcast module – For UAS without built-in capability, a broadcast module can be added to retrofit it with remote ID capability. A broadcast module is a device that broadcasts identification and location information about the drone and its take-off location. Persons operating a drone with a remote ID broadcast module must be able to see their drone at all times during flight.[3]
- Operate without remote ID equipment, but only within certain designated areas – UAS without remote ID can operate only if they are within visual line of sight, and within an FAA-Recognised Identification Areas (FRIAs).[4] Anyone can fly in an FRIA, but they can only be requested by community-based organizations or educational institutions.
The message elements being broadcast with the digital license plate must be broadcast from take-off to shutdown. Under the Standard Remote ID Method, drone operators will not be able to disable the remote ID technology. The following message elements must be transmitted:
- A unique identifier for the drone;
- The drone’s latitude, longitude, geometric altitude, and velocity;
- An indication of the latitude, longitude, and geometric altitude of control station (Standard Remote ID) or take-off location (Broadcast Module);
- A time mark; and
- Emergency status (Standard Remote ID only).
The compliance date for manufacturers is September 16, 2022. The compliance date for operators is September 16, 2023. For most operators, this will mean flying a Standard Remote ID Drone, equipped with a broadcast module, or flying at a FRIA.
The FAA produced the following diagram to illustrate the differences in remote ID requirements for the three categories of drones:
Concerns
There have been several industry participant concerns, as demonstrated by the thousands of comments made on the Proposal. In particular, there are concerns with respect to (1) the cost of compliance, (2) restrictive nature for recreational users, and (3) privacy.
Costs
The new regulations will likely require operators and manufacturers to incur additional costs to comply. Drone operators and manufacturers may be required to purchase or manufacture new aircraft that are compatible with the regulations as those operating non-compliant drone will only be able to operate in FAA-approved areas.
However, the Final Rule improved on the Proposal in terms of costs. Originally, the Proposal envisioned drones connecting to a mobile network, requiring the payment of a monthly subscription fee. This was removed in favour of radio protocol (such as WiFi and Bluetooth) in the Final Rule.
Restrictions on recreational users
The regulations have broad application: they apply to all drones weighing between 0.5 and 55 pounds inall US airspace (other than designated FRIAs), and to both commercial and recreational operations. This means that any drones that do not meet the remote ID requirements can only be operated in visual line of sight or in a designated area. Consequently, operators without remote ID who would like to fly legally will have to either fly (i) indoors, (ii) in a FRIA, (iii) fly a drone weighing less than 0.5 pounds, or (iv) obtain a special authorization.[5] Recreational users and hobbyists who build and fly model airplanes will feel these restrictions acutely.
Privacy
Industry participants have expressed concerns about the broadcasting of real-time information about drones and their operators since personal wireless devices within range may have access to some of the data being broadcast. However, the Final Rule states that correlating the serial number or session ID with the registered drone will be limited to the FAA.[6] The information available to the FAA can, however, also be made available to authorized law enforcement and national security personnel upon request.[7]
There is an ongoing court case challenging the constitutionality of the FAA’s remote identification rule: Brennan, et al. v. Dickson, No. 21-1087 (D.C. Cir.), or “RaceDayQuads v FAA”. RaceDayQuads (RDQ) is an e-commerce shop that caters to drone-racers. Among other challenges, RDQ’s team alleges that the FAA’s final rule is a violation of the Fourth Amendment because it allows warrantless tracking, and therefore breaches the US constitutional right to be free from unreasonable searches from the government. The government’s response has been that merely requiring remote ID technology on UAS does not constitute an unreasonable search or, in the alternative, that the special needs doctrine applies to justify the search. The issue of jurisdiction over low-level airspace above landowners property has also been raised. The court’s ruling is still pending.
Direct broadcast vs network remote ID – The FAA’s “UAS BVLOS Aviation Rulemaking Committee” Final Report
Previously, the 2020 Unmanned Aircraft System Traffic Management (UTM)’s concept of operations contemplated two methods for drones to transmit remote ID information: direct broadcast or network publishing. The Final Rule favoured direct broadcast and does not permit the use of network technology to meet remote ID requirements.
On March 10, 2022, the Aviation Rulemaking Committee (ARC) established by the FAA to deal with Beyond Visual Line of Sight UAS released a report, which urges the FAA to explore additional identification solutions that supplement broadcast ID for drone BVLOS operations, specifically solutions that enable remote ID data to be accessed via a network, in a way that maintains appropriate privacy safeguards.
Conclusion – and potential impact on Canadian rules
The US remote ID regulations are a step in the right direction and are a key milestone to unlocking the full potential of commercialized BVLOS operations. Additionally, the requirement for remote ID transmission in most drone operations promotes enhanced public safety and paves the way to establishing comprehensive drone traffic management (and more advanced applications like package delivery and urban air mobility).
While Canada remains without regulations pertaining to remote ID, the developments in the US may provide guidance on how the Canadian approach to remote ID may be formulated. Transport Canada appears to have focused its efforts on a regulatory package for beyond visual line of sight operations (which is currently anticipated in late 2022).
For more information on this topic, please feel free to contact Kathryn McCulloch or any member of Dentons’ Aviation team.
[1] United States Department of Transportation, Federal Aviation Administration: Remote Identification for Drone Pilots. https://www.faa.gov/uas/getting_started/remote_id/drone_pilots/ [FAA: Remote ID for Drone Pilots].
[2] See Remote ID Executive Summary on page 1 for more information regarding Standard Remote ID Drone: https://www.faa.gov/news/media/attachments/RemoteID_Executive_Summary.pdf and for
[3] See Remote ID Executive Summary on page 2 for more information regarding UA with Remote ID Broadcast Module: https://www.faa.gov/news/media/attachments/RemoteID_Executive_Summary.pdf
[4] See Remote ID Executive Summary on page 2 for more information regarding FRIAs: https://www.faa.gov/news/media/attachments/RemoteID_Executive_Summary.pdf
[5] Section 89.105 of the rules states “except as otherwise authorized by the Administrator”, so it is possible to get an authorization but this will likely be done for only certain groups.
[6] Ibid.
[7]Ibid.
