Drone Remote ID enforcement delay is ‘discretionary’: What does that mean?

The FAA on Wednesday announced it was pushing back the compliance deadline for its drone Remote ID rule by six months, to March 16, 2024. Does that mean the agency is giving a free pass to pilots or that all apparent noncompliance in the meantime will be ignored? Not really. Here’s what is happening…

Remote ID, as you likely know, is a feature that enables a drone in flight to provide its identification and location information to other parties. The FAA likens it to a “digital license plate” for a drone. Most drones operating in the US airspace are required by law to have this capability because federal agencies need a mechanism to locate the operator when a drone appears to be flying in an unsafe manner or where it is not allowed to fly.

There are three ways drone pilots can meet the identification requirements of the Remote ID rule:

• By flying a standard Remote ID drone that has broadcast capabilities built-in,
• By retrofitting the aircraft with a Remote ID broadcast module and flying the drone only within visual line of sight, and
• By flying only at FAA-recognized identification areas (FRIAs) that are sponsored by community-based organizations or educational institutions.

Initially, the FAA had mandated that all drone pilots who are required to register with the agency —including those who fly for recreation, business, or public safety — must operate their aircraft in accordance with the Remote ID rule by September 16, 2023.

But in the last few weeks, the FAA has received significant public feedback regarding the rule, including inquiries about the compliance date and the inability to obtain broadcast modules that would allow continued operation of existing drones.

As of August 28, there are 261,143 operators flying with a remote pilot certificate under 14 CFR part 107 and 328,372 recreational flyers operating under the provisions of 49 U.S.C. 44809 who are not Remote ID equipped. Naturally, not everyone has the bandwidth to purchase a new standard Remote ID-enabled drone.

Related: Which DJI drones have Remote ID? The complete list

Further, there are operators who are waiting for drone manufacturers to drop firmware updates that would allow them to activate standard Remote ID capabilities and make their aircraft compliant. Meaning, that their drones would become compliant in the near future, but for the time being, they would be forced to ground the fleet and bear financial losses if they use their flying cameras for commercial purposes.

But monetary loss aside, there are several organizations in the US that use drones for important welfare and public safety works, such as inspection of critical infrastructure or search and rescue missions. This is why the FAA also received pushback from industry advocacy groups (including the Commercial Drone Alliance and the Association of Uncrewed Vehicle Systems International), public agencies (such as the Nebraska Department of Transportation and the Iowa Department of Transportation), and drone pilots within the FAA’s own BEYOND program to delay the rule enforcement.

It certainly doesn’t help that there has also been a huge delay in FRIAs getting approval. As of August 18, the FAA has approved only 412 applications for FRIAs. Another 1,206 requests are yet to be reviewed, and more applications are pouring in every week!

It is because of all these reasons that the FAA has decided to give drone operators an additional six months to comply with the Remote ID rule. But that doesn’t mean the agency will ignore safety, national security, and law enforcement concerns in the interim.

The FAA has categorically said it expects drone pilots to comply with the requirements of the rule as soon as possible. Noncompliance could still lead to enforcement action, but that would be at the agency’s discretion. Meaning, the decision would be taken on a case-to-case basis.

Brendan Schulman, DJI’s former policy and legal affairs lead, explains it best when he says, “One way to think about this is: if you can easily comply with the rules by updating your drone’s software, you ought to do so because there is no excuse for not complying. If you need to attach a module and none are available, you should be OK for a while longer.”

Similarly, if you’re flying model aircraft at a club site that submitted a FRIA application, which the FAA is still sitting on, that’s not your fault either. In those locations, you wouldn’t need a broadcast module at all.

“The FAA has continued to monitor this situation as long as possible before making a determination, but with less than a month remaining until the operational compliance date, the FAA acknowledges that for many operators, compliance may prove difficult or impossible in the timeframe presented,” says Taneesha Dobyne Marshall, assistant chief counsel for aviation litigation at the FAA.

Marshall further acknowledges that while some pilots, such as those who are using standard Remote ID drones or those operating in already-approved FRIAs, will be able to comply with the rule, the cumulative effect of the current state of the compliance issues could lead to cessation of numerous drone operations. And that, Marshall stresses, “is not consistent with the FAA’s intent for this rule or its statutory mandate to integrate drone operations into the National Airspace System (NAS).”

As such, the agency has decided it will exercise its discretion in determining how to handle any apparent noncompliance, including exercising discretion to not take enforcement action, if appropriate, for any noncompliance that occurs on or before March 16, 2024. But Marshall has further clarified that the exercise of enforcement discretion will neither create any individual right of action nor establish a precedent for future determinations.

In the meantime, the Association of Uncrewed Vehicle Systems International has urged drone operators to comply with Remote ID requirements “as quickly as possible” and for the FAA to implement all agency rulemaking swiftly. Chief advocacy officer Michael Robbins says, “Remote ID is necessary to ensure the continued expansion of scalable and secure drone operations in the national airspace system — which will bring significant benefits to the American public and businesses.”

Also read: 4 DJI drones that require an external Remote ID module