OpEd – America’s Counter-Drone Imperative: Permanent Congressional Action Needed Now to Secure the Skies

By: Dawn Zoldi

The American drone industry, as a whole, has marked its collective calendar with a single, palpable date: October 6th, the conclusion of the public comment period for the FAA’s much-anticipated Part 108 Notice of Proposed Rulemaking. Companies, advocacy groups, and policymakers alike remain rightly fixated on the ramifications of this regulatory inflection point, preparing to shape how Beyond Visual Line of Sight (BVLOS) drone operations will be governed for years to come. 

Yet while most eyes remain glued to this headline deadline, there is another, quieter countdown underway, one with stakes just as profound, if not more so, for the future of the drone ecosystem. The temporary legal authorities that empower federal agencies to detect, identify, track, and mitigate malicious drones are again set to expire. Without Congressional renewal or action, these tools, already narrow, could vanish. This would leave critical gaps in the nation’s ability to respond to hostile or reckless uncrewed aircraft system (UAS) activity and put the broader industry’s stability and safety at risk.

In July, Feddersen provided a reality check to Congress: the tactics being developed by state and non-state actors in conflict zones are already finding their way to our doorstep. “Drone warfare abroad has evolved rapidly over the past decade. Tactics refined in these conflict zones… are now manifesting as emerging threats to U.S. homeland and national security,” he said.

Ukraine’s Operation Spider Web, which leveraged commercial drones for strategic strikes inside Russia, proved that victory through simple, low-cost drones against advanced defenses is no longer hypothetical. “Strategic depth offers no immunity,” Feddersen cautioned. America’s remote infrastructure and metropolitan heartlands alike are now exposed.

I have watched with growing concern as the once novel weaponization of simple drones has become the norm. Feddersen described in detail the progression from foreign innovations to local threats. He referenced attempts to use drones to sabotage Pennsylvania’s infrastructure, smuggle contraband into prisons and even deploy makeshift weapons at public events. 

The chilling reality is that the same off-the-shelf, accessible technology that empowers first responders and industries can be wielded by bad actors for chaos and destruction. “Common commercial drones have already been used in attempts to destroy or damage critical infrastructure, and we continue to see variations of weaponized drones attempting to attack the public in the heartland,” Feddersen testified. I echo this alarm from firsthand industry observation, backed by military experience.

Why, then, do we remain so vulnerable? The answer is frustratingly simple. While the technology to counter these threats exists, our laws remain stuck in a perpetual spin cycle: never fully enacted, always about to lapse. 

Under the current framework, only a small cadre of federal agencies, chiefly the Department of Defense (DOD), Department of Energy (DOE), Department of Homeland Security (DHS), and the Department of Justice (DOJ), possess explicit legal permission to detect and neutralize rogue drones—and even then, only in a narrow set of situations. 

Feddersen revealed to Congress what I know from speaking with frustrated federal, state, local, tribal and territorial (SLTT) law enforcement officials. These limited authorities, especially when combined with the minimal federal resources allocated to the C-UAS problem, mean the capacities of our federal experts remain a “rounding error” compared to the gargantuan number of requests for help received each year. 

As I pointed out in Newsweek, “local law enforcement is always the first to respond to incidents, including those involving drones. However, they currently lack the authority to detect or mitigate these threats.” The result is a gap that adversaries are already, not surprisingly, exploiting. We just haven’t had “the big one”…yet.

For the first time since taking office, the new FAA Administrator, Bryan Bedford, addressed the commercial drone industry in a public forum: the Commercial Drone Alliance BVLOS Stakeholders’ Summit. During these remarks, Bedford candidly addressed the FAA’s concerns about C-UAS. “I don’t want to suggest we’re sitting here today with all the answers. We’ve got a lot of questions, and we’re going to ask the industry to help us think about these questions and how we might be able to answer them,” he said.

Not only does the FAA lack answers. It lacks the power, independent of Congress, to grant authority to anyone to detect, identify, track or mitigate drone threats. This is a reality often misunderstood by the broader public and even many in the industry. Despite its regulatory authority over U.S. airspace, the FAA cannot unilaterally close the legal gap on counter-drone activities. The agency is beholden to Congressional directives not only for its own operations, but also for extending any such authority to others, including law enforcement or public safety partners. 

We are all watching the same threats. But we need legislative solutions, not regulatory action, to defend our airspace. The October 6th NPRM deadline is only part of the equation. While new BVLOS rules may shape the future of commercial drone operations, renewing and expanding C-UAS legal authorities is just as critical for protecting that future.

Skeptics sometimes raise constitutional objections to counter-UAS technology, claiming that it threatens civil liberties or stifles legitimate drone innovation. I responded pointedly in a recent Duke LENS Lawfire Blog: “The real danger is constitutional confusion, not counter-UAS technology.” The authorities Congress adopts must absolutely strike a balance between public safety and constitutional rights. But letting our airspace remain the soft underbelly of national security is not the answer. Federal statutes should set the boundaries. We need to then trust competent agencies and professionals to apply those laws under robust oversight and evolving operational standards.

I join Brett Feddersen and many industry voices in calling for three non-negotiable steps:

• Congress must expand counter-UAS authorities to explicitly include SLTT law enforcement who are professionally trained and certified. 
• We need a strong, consistently funded federal training and accreditation regime so counter-drone powers are exercised lawfully and wisely. 
• Congress must ensure ongoing funding for infrastructure so our defenders can stay equipped against evolving drone threats.

These actions do not break technical ground. They clear a legislative bottleneck. As Feddersen aptly put it: “This is not a technology problem. We solve this problem by getting a congressional mandate, getting funding and allowing for innovative development programs.” 

Feddersen’s own company, D-Fend Solutions, for example, recently released an upgraded version of its radio-frequency (RF) cyber drone takeover system, named the EnforceAir PLUS. It streamlines drone defense by merging RF, radar, and jamming into a single automated, real-time system that accelerates threat response from human-paced to machine-speed precision. This is but one example of many C-UAS solutions that can provide a layered blanket of protection for the nation.

I have said it before and will keep saying it until Congress acts: the counter-drone value proposition is a no-brainer. The technology works, privacy can be protected, and the fundamental safety of our nation cannot wait for yet another waiver or sunset clause. 

The clock keeps ticking. If Congress lets these authorities expire, we will have not just failed to keep up with technology, but willfully left Americans exposed while our adversaries grow more brazen. This is the ultimate test: can our legal system adapt at the same pace as our adversaries? As both witness and participant in this field, I know what is at stake. At this point, we all do. Protecting our skies is as much about law as it is about innovation. Now is the time for permanent solutions, not half-measures or temporary fixes.