United States: The FAA's Drone Dilemma: The Need For Regulation Vs. Liberal Licensing

Perhaps no issue has drawn as much attention to the Federal Aviation Administration in recent months as its much anticipated final regulations for small unmanned aircraft systems (UAS), or drones, expected in the early part of 2017. The FAA is faced with a difficult road ahead in this arena: it must implement a workable regulatory system in the face of ever-increasing pressure from various industries eager to utilize this cutting edge technology without the inconveniences of complex government intervention or threat of an FAA enforcement action. This challenge is highlighted by the FAA's recent release of a number of pilot reports of UAS encounters with manned aircraft (approximately two sightings per day), many of which have required evasive action, and the FAA's update to guidance for hobby and recreational users of UAS.

Earlier this year, the FAA unveiled its framework to regulate commercial use of small (less than 55 pounds) UAS, and specified requirements for small UAS operators, in proposing Part 107 to the Federal Aviation Regulations. While the public waits for these rules to become final, the FAA is authorizing small UAS commercial operations on a case-by-case basis through a process known as a Section 333 Exemption, where the FAA waives certain aviation regulations for operations demonstrated to be safe. To date, the FAA has granted 1475 exemptions allowing commercial use of small UAS in a wide variety of industries. The rate of exemptions has only increased over the past several months.

Moreover, the proposed rules and Section 333 Exemptions do not apply to hobby or recreational users of UAS. Thus, no permission or authorization from the FAA is required to use UAS for recreational purposes. However, on September 2, in order to help reduce UAS incidents, the FAA published updated guidance for hobby or recreational users.1 Under this guidance, hobbyists are encouraged to operate below 400 feet, within the line of sight of the operator, and at least 5 miles from an airport. This guidance is not mandatory and provides no real enforcement mechanism other than the threat of an FAA enforcement action for careless and reckless UAS operation.

In the short time since the release of the FAA's draft regulations for commercial use of small UAS, the efficacy of these proposed rules has become increasingly uncertain as demonstrated by a recent string of highly-publicized drone incidents at crowded events, and repeated near-misses (and one possible collision) between drones and manned aircraft. Also, the Department of Transportation recently announced that it will audit the FAA for the number of drone operation approvals under Section 333 over the last year.

The FAA's proposed regulations seem comprehensive at first blush. With regard to protecting manned aircraft, drones are not permitted to operate above 400 feet and within five miles of airports, and operators must maintain line-of-sight with their UAS. If followed, those guidelines alone would protect the vast majority of manned aircraft traffic, which do not typically operate below 400 feet except for segments of approaches and arrivals that are very close to airports.

It has become increasingly clear, however, that the FAA's draft regulations are not always followed, and appear to be difficult to enforce. On August 27, 2015, an apparent collision of a UAS and manned aircraft (the first such mid-air collision since 2011 in Afghanistan) occurred in Illinois at an altitude of 2,500 feet, more than 2,000 feet above the FAA's drone ceiling.2 The Piper Apache involved sustained damage to a wing, but fortunately was able to land safely. The operator of the drone has not been located.

While thankfully drone collisions have been extremely rare, near-misses and sightings have been occurring daily. In August 2015, two airliners reported narrowly missing UAS while on approach to airports in New York. In one incident, a JetBlue Airbus at approximately 900 feet on approach to JFK Airport reported a drone passing just below it.

These close calls have raised concerns over the potentially disastrous repercussions of drones operating illegally near airfields, including the possibility of using a drone in a terroristic attempt to bring down an airliner.

Pilots and passengers are not the only ones that recently have been exposed to near-misses with drones. UAS have made unwelcome appearances at two recent high-profile sporting events. A drone flew into a tennis match at the U.S. Open on September 3, crashing into an empty section of bleachers. The operator was located at a nearby marina, and will face criminal charges. At a football game at the University of Kentucky on September 5, a drone crashed in the stadium during pregame festivities, again narrowly missing people. The operator was a student flying the drone from the parking lot. These operators clearly did not follow the FAA's regulations, and it stands to reason that enforcement will continue to be an issue because drones do not require large areas to launch and are widely available to anyone that can afford them, and vendors are not yet required to ensure the purchaser has been properly certified by the FAA.

The movement toward allowing more UAS despite the murky regulatory and enforcement scheme reached new heights on September 1, when the FAA waived requirements to obtain airworthiness certificates for the Washington-based LLC Measures, allowing them to operate 324 types of UAS. Measures CEO Brandon Declet stressed the need to operate a diverse fleet of drones since they are "used for an ever-growing number of data collection applications."3 Declet heralded the safety advantages of drones, since they carry no fuel and can get relatively small cargo loads to destinations with less difficulty than helicopters.

The FAA must quickly figure out a way to balance the need for safety from a regulatory standpoint while dealing with enormous pressures from the commercial drone industry, which sits on the precipice of becoming a multibillion dollar enterprise.

It remains clear that UAS will become more and more prevalent in the years to come, but the extent and scope of the insurance and legal issues that will accompany the assimilation of this industry remain somewhat speculative. It is therefore important that those in aviation follow developments carefully. After all, not so very long ago, commercial aviation was a "fledgling industry" as well.


1. See Advisory Circular (AC) 91-57A.

2.  Mary Grady, Unconfirmed Drone-Airplane Collision Reported, available at http://www.avweb.com/avwebflash/news/Unconfirmed-Drone-Airplane-Collision-Reported-224792-1.html

3. Jacob Fischler, FAA Approves Drone Company to Operate 300+ Commercial Fleet, available at http://www.law360.com/aerospace/articles/697963?nl_pk=f94d9ef8-dc0e-4449-8128-24daf9a3f7ab&utm_source=newsletter&utm_medium=email&utm_campaign=aerospace

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.