Update on U.S. Counter-UAS Authorities and Efforts to Address Threats from Drone Operations

The military conflicts in Ukraine and Israel have highlighted the role that small unmanned aircraft systems (sUAS) might play in future conflicts. The Federal Aviation Administration (FAA) Reauthorization Act of 2024 (the Act) enacted into law a number of provisions related to U.S. counter-unmanned aircraft systems (counter-UAS) authorities that will impact the future of drone security activities. The Act also sets the stage for the enactment of expanded counter-UAS authorities and federal funding to implement such authorities. On July 9, 2024, the House Appropriations Committee released its fiscal year (FY) 2025 bill and report language to fund the FAA starting Oct. 1, 2024, and included $15 million in that bill "to further support counter-UAS research, development, testing and evaluation activities." On June 12, 2024, the U.S. House of Representatives released its FY 2025 bill and report language to fund the U.S. Department of Homeland Security (DHS) that includes significant funding and directive report language regarding the need to address the emerging threat of rogue drones, including language "$5,000,000 above the fiscal year 2024 enacted level to increase to develop a portable detection and identification system for countering sUAS and for associated training."

This Holland & Knight alert summarizes the latest developments in counter-UAS legislation to address clueless, careless and criminal drone operators while allowing safe drone operations to flourish.

FAA Reauthorization Act Provisions

The bipartisan Act included numerous provisions that continue to evolve U.S. counter-UAS authorities and set the stage for broader changes. Provisions in the FAA Reauthorization Act may appear to merely extend existing authorities related to airport safety, airspace hazard mitigation and airspace designations, however, subtle changes in the legislative text look to advance routine counter-UAS operations, including:

• Section 904. Airport safety and airspace hazard mitigation and enforcement
• Section 929. Applications for designation
• Section 935. Protection of public gatherings
• Section 1112. Counter-UAS authorities

Though seemingly procedural, these extensions hold profound implications for the aviation industry, particularly for counter-UAS operations near airports, secure sites and critical infrastructure facilities. Section 904 of the reauthorization extends the FAA's authorities under Section 44810 of Title 49, U.S.C., to conduct counter-UAS testing around airports through Sept. 30, 2028. Section 929 amends Section 2209 of the 2016 FAA reauthorization to include state prisons eligible to apply to the FAA for restrictions of drone operations overhead. Section 935 establishes the authority to request temporary flight restrictions (TFRs) around certain large public gatherings in a new Section 44812 of Title 49, U.S.C. Section 1112 extends existing federal counter-UAS authorities from May 11, 2024, to Oct. 1, 2024.

In addition to aviation and airport operations, the counter-UAS provisions of the FAA Reauthorization Act will have significant effects on a number of key industries, such as telecommunications, energy (including oil, gas and alternative energies) and outdoor public events ranging from professional football games to summer music festivals. The legislation advances counter-UAS measures to mitigate risks posed by unauthorized drones. This means securing telecommunication networks from disruptions, maintaining uninterrupted power generation and distribution operations, and enhancing security at large public events. Overall, the Act reinforces the safety and ongoing stability of vital industries and critical installations.

Drone Incursions at Airports

Since the enactment of the 2018 FAA reauthorization, there have been multiple reported drone disruptions to airport operations. One of the most notable incidents occurred at London's Gatwick Airport in December 2018 when reports of multiple drones operating near one of the airport's runways forced authorities to ground flights, stranding thousands of passengers and causing significant financial losses for airlines and businesses globally. More recently, Ronald Reagan Washington National Airport in the nation's capital experienced its own drone incursion in 2022, albeit on a smaller scale, but also resulting in a temporary shutdown of airport operations.

These incidents highlighted the vulnerability of aviation infrastructure to clueless, careless or criminal drone operations and sparked urgent calls for enhanced counter-UAS measures to mitigate similar threats in the future.

As a result, the FAA Reauthorization Act extends the authorities of the FAA to test counter-UAS operations near airports as well as extending the counter-UAS authorities to identify, track and mitigate drones by the DHS and U.S. Department of Justice (DOJ). Congress, however, only extended these authorities to Oct. 1, 2024. The short extension of authorities was intentional, as there are active and concerted efforts in both the U.S. House of Representatives and Senate to enact a more robust reauthorization and expansion of counter-UAS authorities later this year.

Where Congress Stands on Counter-UAS Legislation

Legislation has been introduced in both chambers of Congress aimed at addressing the growing threat posed by unauthorized drone activities. However, neither the House nor the Senate has yet to pass any piece of legislation specifically targeting counter-UAS operations. The inclusion of a sunset of existing counter-UAS authorities of Oct. 1, 2024, was intended to force action by Congress to enact a broader reauthorization this year. One of the most closely watched provisions of the broader counter-UAS reauthorization is the extent to which Congress authorizes states and municipalities to take actions to address drone risks.

Section 2209 Reforms

In 2016, Congress required the FAA to create a process where fixed sites could petition for airspace restrictions for drones in Section 2209 of the FAA Extension, Safety, and Security Act of 2016. Congress required the FAA to stand up this program within 180 days of enactment. However, eight years later, the FAA has still not taken formal action to implement this provision. Section 929 of the FAA Reauthorization Act of 2024 makes several significant changes aimed at narrowing Section 2209 and forcing its implementation.

One notable change was the removal of the "catch-all" language, which previously granted broad discretion to the FAA in designating locations for temporary flight restrictions at the Administrator's discretion. Instead, Congress opted for a more targeted approach by explicitly adding "state prisons" to the list of eligible locations for such restrictions. The removal of the catch-all language addresses a longstanding concern that had plagued the FAA's efforts to implement this provision effectively. The ambiguity surrounding the scope of the FAA's authority led to delays in issuing a rule and hindered progress in enhancing safety measures. With a narrower scope and clearer guidelines, the FAA is poised to expedite the rulemaking process to ensure the timely implementation of Section 929.

Temporary Flight Restrictions

In addition, Congress aimed to provide clarity around the FAA's authority to create TFRs around large public gatherings in Section 935 of the FAA Reauthorization Act. By specifically addressing TFRs for UAS operations over large public gatherings, such as outdoor sporting events, concerts, festivals and other events, Congress aims to provide law enforcement organizations with enhanced authority to safeguard these events from potential UAS-related hazards. Unlike its sister section (Section 929), Section 935 adopts a more focused approach by streamlining the designation process and establishing clear criteria for eligibility. By aligning with the objectives of Section 2209, but in a more targeted manner, Section 935 seeks to ensure the safety and security of public gatherings while minimizing disruptions to aviation operations.

The Need for a Comprehensive Regulatory Framework

Despite the lack of legislative action on broader counter-UAS authorities to date, there remains a growing recognition of the need to address the gaps in current regulations and enhance counter-UAS capabilities. As threats evolve and technology advances, the urgency to establish a comprehensive regulatory framework becomes increasingly apparent. Moving forward, there is a high likelihood that there will be renewed efforts to advance the legislation introduced this Congress in the next congressional session.

The need for robust counter-UAS operations around airports is paramount in mitigating the risks posed by unauthorized drone activities. Incidents like those at Ronald Reagan Washington National Airport and Gatwick Airport underscore the real-world consequences of drone incursions on airport operations and public safety. Proactive counter-UAS measures are essential to detecting, tracking and mitigating unauthorized drone activities, as well as safeguarding airport environments and ensuring the uninterrupted flow of aviation operations.

The establishment of a comprehensive regulatory framework for counter-UAS operations will provide clarity and guidance for drone operators to continue to expand routine operations in the United States with the knowledge that Congress is addressing the careless, clueless and criminal operators who may seek to operate in the national airspace system. It will also foster innovation and investment in counter-UAS technologies, driving the development of new solutions to address emerging threats.

Looking Ahead

The future of counter-UAS operations holds immense promise and potential for UAS operators and counter-UAS system operators alike. As technology continues to evolve so, too, will the capabilities of counter-UAS systems. Future operations may involve the integration of advanced technologies, artificial intelligence and autonomous response mechanisms, enabling rapid and adaptive responses to emerging threats.

As Congress ponders legislative proposals to address counter-UAS operations, stakeholders should engage policymakers to advocate for policies that strike the right balance between security and innovation. The signing of the FAA Reauthorization Act marked a significant milestone in addressing the evolving security challenges in the aviation sector. Although recent legislative updates have laid the groundwork for enhanced counter-UAS operations, there remains much work to be done to establish a comprehensive regulatory framework.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.