Amazon.com Inc, has begun utilizing outdoor testing facilities outside the United States and has told the FAA that America’s current regulatory environment will force the company to move more research and development abroad unless substantial progress is quickly made on efforts to integrate drones into the national airspace.
Amazon’s statement came in a letter from Paul Misener, Amazon’s Vice President for Global Public Policy. The letter, which Forbes obtained a copy of, is a stunning example of a company begging for a way to keep jobs in the United States, pitted in a fight with a federal agency that has opposed them at every turn. Sadly, the lesson one learns from reading the letter is that taking drone research abroad is a smarter business move than fighting with an agency that does not want to accommodate innovation. Unfortunately, not every company can afford to fight the FAA or take their jobs abroad — that’s why the only way to fix the problems at the FAA is for Congress to act.
In Amazon’s letter Misener tells the FAA’s James Williams, Manager of the UAS Integration Office, that Amazon has engaged in such rapid innovation and development that the company must now move beyond indoor testing if they are to realize the benefits of drones. The urgency of Amazon’s request for permission to test their drones was evident in the letter in which Misener wrote, “In the absence of timely approval by the FAA to conduct outdoor testing, we have begun utilizing outdoor testing facilities outside the United States.”
Amazon’s move abroad has taken with it jobs and technology, that loss of productivity is attributable to the FAA’s slow pace of approvals and regulatory development under which Amazon’s tests that are currently underway abroad simply cannot be conducted inside the United States. Amazon is not alone in their request for limited approval to operate, 167 other applicants have filed exemption requests and are currently awaiting approval from the FAA, which to date has only approved 11 requests. By comparison, Canada has approved more than 2,312 commercial unmanned aircraft flights, and those approvals occurred before that country relaxed their rules last week, making it even easier to fly unmanned aircraft in Canadian airspace.
To understand the delays Amazon has faced, it is important to note that Amazon submitted their detailed petition for an exemption from FAA rules on July 9th of this year. In their request they specified that they would be testing their drones on private property with extensive safety protocols. Those protocols met or exceeded the protocols that were approved by the FAA for Hollywood’s drones. Misener wrote:
To ensure that our outdoor flight testing operations are as safe as possible, we have proposed to test on private property in a rural area of Washington State, away from people or crowds. We also have proposed to do so under the supervision of trained pilots, at low altitudes, below 400 feet above ground level (“AGL”), within visual line of sight, employing “geofencing” technology that will keep the vehicle confined to the test area, and abiding by the detailed safety measures outlined in our petition. These detailed safety measures are much stronger than those currently required for hobbyists and manufacturers of model aircraft, who already do every day what Amazon is proposing.
Yet Amazon is still awaiting approval from the FAA, and in the absence of approval has been forced to take their jobs and technology abroad — just as many said they would.
Central to Amazon’s request is their need to rapidly develop prototypes, and improve those prototypes without requiring FAA permission for each change to their aircraft. Amazon can presently conduct tests outside the United States, but cannot even convince the FAA to approve a plan under which they could do so in America. In his letter, Misener specifically highlighted the advantages that other countries have over the United States, noting “non-U.S. facilities enable us to quickly build and modify our Prime Air vehicles as we construct new designs and make improvements.”
In a hearing today before the House Aviation Subcommittee, the FAA’s Peggy Gilligan, Associate Administrator for Aviation Safety, claimed that Amazon could pursue an experimental certificate as a means to test their drones. While her comment placated the members of the committee, her statement revealed the arrogance of a government agency that believes it knows what it takes to innovate.
In her remarks, Gilligan stated, “We think [an experimental certificate] will fit their needs better, we know they are not satisfied that they have to go with that path, but I’m satisfied we’ll reach an agreement.” The FAA amazingly believes they know more about innovation than the inventors and innovators experimenting with new designs. But Amazon knows what they need, and they know that an experimental certificate will not allow them to innovate inside the United States. In fact, they told the FAA an experimental certificate would not meet their needs and they’ve already found countries willing to accommodate them. In Amazon’s letter to the FAA, Misener wrote:
At the FAA’s suggestion, and again in-line with our desire to pursue fast-paced innovation in the United States, we also have been exploring another regulatory path to accommodate our research and development needs, an Experimental Certification under 14 C.F.R. § 21.191. However, this alternative entails a lengthy process that was designed for manned aircraft and bears little practical application to small UAS. This process requires certification for each individual vehicle, which is burdensome considering how fast we are designing new Prime Air vehicles. Our first Experimental Certification application has been delayed multiple times as we try to work with the FAA to simplify the process. Disconcertingly, there is no guarantee that this alternative process will provide us the flexibility we need or at the pace we need it. Therefore, we are maintaining our Section 333 petition, and hope that we have not lost time pursuing this alternative.
Moreover, the FAA in their interactions with Amazon has consistently displayed their inability to accommodate innovation and their reluctance to quickly approve timely filed exemption requests. In Section 333 of the FAA Modernization and Reform Act, Congress directed the Secretary of Transportation to determine whether some aircraft might be exempted from FAA regulations, and to establish requirements for the safe operation of such aircraft systems. Nothing in the law requires applicants to exhaust other regulations such as an application for an experimental certificate, but the FAA, rather than accommodating innovation and accepting Amazon’s 333 exemption request, instead asked Amazon to explain why they were not requesting an experimental certificate and “explain the particular circumstances regarding why an exemption would be an appropriate vehicle to permit those operations”
The FAA’s position on innovation is clear — if you want to innovate, you need to explain to them why. That’s not necessary, and isn’t required by the law, and that’s why Amazon has taken their operations outside the United States to accommodating countries where bureaucrats don’t ask innovators to explain why they are trying to innovate. Sadly, a small business innovator or a start-up company does not have the ability to engage in this type of drawn out fight with the FAA nor can they move their operations abroad — and those smaller, resource strapped companies are likely being treated similarly by the FAA.
Amazon’s Misener responded to the FAA’s attempt to expand what the law requires, stating:
There is nothing in our reading of Section 333 that requires exhaustion of other regulatory provisions before the FAA grants petitions for exemption. Moreover, the FAA has concluded that an airworthiness certificate, experimental or otherwise, is not required to operate a small UAS under Section 333, which Congress created to get small UAS safely flying as soon as possible in the United States. Requiring exhaustion of alternatives before granting our Section 333 petition would impede that goal.
Misener went on to further note the FAA’s anti-innovation stance:
Of equal concern is your letter’s request for us to further explain “why granting [Amazon’s] request would be in the public interest.” I have responded to this question in detail below, but I fear the FAA may be questioning the fundamental benefits of keeping UAS technology innovation in the United States. Simply put, Prime Air has great potential to enhance the services we already provide to millions of our customers by providing rapid parcel delivery that will also increase the overall safety and efficiency of the transportation system. We want approval to conduct outdoor testing operations with our small UAS in the United States to help realize this goal.
Amazon’s request is clear. They want to innovate and experiment inside the United States, and they want to do so safely. Why is it that our regulatory system cannot accommodate that goal, but other nations can?
Amazon has been forced to explain to the FAA why innovating in the United States is a critically important goal, and they are words that every member of Congress should read. Misener wrote:
It is also in the public interest for Amazon to keep its small UAS R&D operations in the United States, and help America establish itself as the leader in development of UAS technology. Our continuing innovation through outdoor testing in the United States and, more generally, the competitiveness of the American small UAS industry, can no longer afford to wait. Amazon is increasingly concerned that, unless substantial progress is quickly made in opening up the skies in the United States, the nation is at risk of losing its position as the center of innovation for the UAS technological revolution, along with the key jobs and economic benefits that come as a result.
If the FAA won’t even allow testing and experimentation, how will America ever safely integrate unmanned aircraft into the national airspace system? How will the country ever achieve the promise of innovative new technologies in this regulatory climate? Amazon’s rational answer is to test and innovate abroad, members of Congress need to act and force the FAA to accommodate innovation, keep jobs here and keep America competitive.