All About § 1709
Please note: This is not legal advice, this is ADI’s opinion on this matter - consult an attorney before making any decisions related to this matter
When speaking with people across the drone industry, there are a variety of conflicting narratives regarding the consequences of § 1709. This page seeks to address the misconceptions.
Does § 1709 Ban DJI and Autel?
Section 1709 does not explicitly ban DJI and Autel. Technically, it only orders that a to-be-named agency evaluate whether they should be placed on the FCC’s Entities List (more on that below). The reason ADI is so confident DJI and Autel will be banned is that § 1709 requires a report to Congress if the appointed agency does not find DJI and Autel to be a threat, and opens evaluation to any other agency to make that determination.
If DJI and Autel are placed on the FCC’s Entities list, their new drones cannot be granted licenses and all licenses granted after February of 2023 will be automatically revoked - but what about the drones that are currently owned in the U.S?
What about DJI and Autel Drones I own already?
This is a harder question to answer immediately, but the prospects do not look good.
First, for all equipment on the FCC’s Entities List, any license granted after February of 2023 would be revoked automatically, with other, older licenses potentially being revoked later on (the FCC has clearly determined they have the authority to revoke licenses, but have not decided to act on that authority yet).
Once on the Entities List, the import of covered equipment will be banned. While batteries and other ancillary hardware will not be banned by placement on the Entities List (they are not ‘communications equipment’ technically) they may be barred under the other import restrictions DJI is already facing (such as the UHRPA import challenge and the current soft-ban). Of course, once the available battery supply is exhausted, the drones will be useless.
While many outlets are reporting that the language in the NDAA is not a ban on equipment currently owned and operated in the U.S., that analysis ignores FCC Report 22-84, published in February 2023, in which the FCC stated that any license granted after February of 2023 to a company on the Entities List would be revoked. Further the FCC held that they had the right to retroactively revoke any historic licenses which have been granted to companies on the Entities List (pg. 46, § III(B)(6)(102-03) & (b)(114-118)). This is a major concern, as drones are the first equipment on the entities list not hardwired into the national telecommunications infrastructure, and the language in 22-84 makes clear that the FFC sees license revocation as an authority that will continue to expand retroactively as the scope of the Entities List expands (pg. 47 - §III(C)(121)).
ADI projects that DJI and Autel products will be on the Entities list by mid-year, and expects the FCC to take action against some, if not all licenses already issued to DJI and Autel, once on the list. These will be the first companies to be placed on the Entities List where none of the equipment they produce is directly integrated into our national communications network. While the FCC has, to date, made a point of not pursuing on non-critical / non-embedded technologies made by companies on the Entities List (see FCC 22-84 pg. 60, note 374), because DJI and Autel do not produce any equipment that is integrated into the telecoms grid, a more aggressive treatment of their products should be expected. This is because if the FCC is trying to attack the ‘critical’ products a company makes, but none of the products a new addition makes fits the current definition of ‘critical’ the two choices are to make the addition meaningless or expand the definition of ‘critical’ (see also Lib. of Cong. ISBN 0737902906, No. 5, parag. 3, Line 11). Put differently, if they present a threat sufficient to bar their future operation, there is potentially a strong argument that they should be barred from currently operating.
A final note - ADI does not claim to be omniscient, and other sources should be consulted and, as with any prediction, we may be wrong, that said, be wary of any analysis that does not reference FCC 22-84, as that is where much of the meat of the Entities List’s rules lay.
While the Agricultural Drone Initiative will never advocate for any drone company to be banned, it is important to pragmatically consider the likely impacts of these policies and it is our assessment that a blanket operational ban should not be counted out.
What is the Entities List?
The FCC's Banned Entities List under 47 U.S.C. § 1600-1609 (the Secure and Trusted Communications Networks Act of 2019) is a list of entities that are prohibited from acquiring, importing, or exporting telecommunications equipment or services in the United States. These entities are typically designated as a threat to national security and is a list of communications equipment and services that have been determined to pose an unacceptable risk to U.S. national security or the security and safety of U.S. persons.
The Entities List identifies telecommunications equipment and services that are prohibited from being used in U.S. communications networks. Originally the List was limited equipment used by companies which received federal funding. After the promulgation of FCC 22-84A1 (see section above) it was expanded to bar all equipment on the list from operating in the U.S. Equipment and services are added to the list based on determinations made by various U.S. government entities, including the Department of Commerce, Department of Defense, and the intelligence community.
The Entities List is part of broader efforts by the U.S. government to secure telecommunications infrastructure against potential foreign threats, particularly those that might enable espionage or cyberattacks.
What’s Next
While it is unclear when the final determination will be made, it is likely to be some time in the late spring or early summer.
The most critical next step for the agricultural drone industry is to engage with Congress to support American drone companies and advocate for tax incentives and rebate programs to ensure that the early advocates for agricultural drones that bought these products are not left behind, unintentionally harmed by larger national security concerns. There is an appetite in Congress to help, and we can make a difference - if we join together and present our arguments as a unified group.
Additionally, the FAA expects to release the Part 108 BVLOS Notice of Proposed Rulemaking in January of 2025. This may be pushed back (again) because of the outsized attention the FAA will receive from Elon Musk and DOGE, but it is hard to tell. ADI will be submitting a comment on BVLOS for the agricultural drone industry - if you have objectives and arguments to include in a Part 108 comment, we would be happy to discuss it with you.