United States: Drone Law And Drone Regulation: A Primer

On August 29, 2016, the Federal Aviation Administration's (FAA) new rule governing non-recreational use of small unmanned aircraft systems or "drones" became effective. The new rule – formally known as Part 1071 – is designed to allow for routine business use of drones while "minimiz[ing] risks to other aircraft and people and property on the ground."2 What follows is a short review of recent developments in FAA drone regulation and the major civil liability issues expected to result from drone use in American airspace.

Introduction

A drone3 is simply a powered aircraft with no human operator on board. Referred to by the FAA as unmanned aerial vehicles (UAVs) or unmanned aerial systems (UASs), drones "come in a variety of shapes and sizes and serve diverse purposes."4 "They may have a wingspan as large as a jet airliner or smaller than a radio controlled model airplane."5

Drone or "UAS" technology is no longer the wave of the future; the technology is already here. Potential advantageous applications range from surveillance, to firefighting, to agriculture, to delivery systems and more. Some experts predict the global market for commercial drone applications may reach $127 billion by the year 20206; up from $552 million in 2014.7 But despite its promise, drone technology also presents opportunities for misuse, accident, tortious activity, and even intentional or illegal misconduct. Drone technology is expected to raise new civil liability issues not only in the area of traditional aircraft liability, i.e., negligence and product liability claims arising from crash incidents and other events, but also invasion of privacy, nuisance, trespass, and even malicious acts with weaponized drones. Because they are inherently different from manned aircraft, integrating drones into the nation's airspace presents a significant challenge for the aviation and legal communities.

Drone Regulation: From Model Airplanes to Modern Drones

Drones are considered "aircraft" and are regulated by the FAA.8 All "aircraft," from jet airliners to small model airplanes, must comply with the rules and regulations of the FAA. However, understanding drone regulation requires an understanding of the FAA's historical stance on small remote operated aircraft or "model" aircraft.

While model airplanes and aircraft have been around for almost a century, the FAA has not heavily regulated toy planes flown for recreation. The FAA maintains a "hobbyist" or "recreational use" exclusion that exempts small model aircraft from the normal licensing requirements and allows, subject to certain rules of flight, the operation of small model aircraft (55 pounds and under) for recreational purposes in legal airspace without permission from the government.9 Thus, small remote or "model" aircraft are regulated primarily according to how they are used, i.e., recreational versus commercial use. While the recent proliferation of drone technology has created more opportunity for business use of small remote aircraft, the regulatory framework has remained largely the same.

Recent regulatory focus has been on commercial use of drone technology. The FAA seems to interpret "commercial use" of drones to mean, "use in exchange for value." This seemingly simple definition is deceiving; one can easily cross unintentionally into commercial drone use. Recent news reports provide examples of wedding photographers who took aerial photos for remuneration or pay, kids demonstrating aerobatics for pay (i.e., a neighborhood "wing show"), or even individuals or small businesses posting videos obtained with a drone to ad-based social media. Examples like these have led to FAA investigations10 and, in some cases, severe penalties ranging from $27,500 in civil cases to $250,000 and three years in prison in criminal cases.11

In recent years, licensed commercial use of drones has been cost prohibitive.12 Commercial operation of aircraft, including drones, traditionally required compliance with all FAA licensing and certification standards, i.e., a commercial pilot's license, certificate of airworthiness, proper FAA registration, etc.13 These requirements are expensive and can take years to satisfy, and the cost outweighs any profit or benefit commercial drone use may provide. The problem, though, is that companies desperately want to use drones for business. Potential commercial applications for drone technology include, but are not limited to:

  • survey and inspection of remote power lines and pipelines,
  • traffic and accident surveillance,
  • emergency and disaster monitoring,
  • cartography and mapping,
  • search, rescue and recovery,
  • agricultural spraying,
  • aerial photography and videography,
  • promotion and advertising,
  • product delivery,
  • weather and pollution reconnaissance,
  • flight research,
  • fire fighting, monitoring and management,
  • atmospheric research,
  • scientific research,
  • oceanographic research,
  • geophysical research,
  • mineral exploration,
  • imaging spectrometry,
  • telecommunications relay platforms,
  • film and cinematography,
  • police surveillance, and
  • border patrol and reconnaissance.14

The FAA's new small UAS rule, FAA Part 107, now exempts small commercial aircraft from the normal "commercial aircraft" licensing and certification requirements. Since Part 107 took effect on August 29, 2016, commercial use of small drones has been open for business in America, and commercial drones will soon be integrated into the public airspace. The major provisions of Part 107 are:

  • Drone weight is limited to 55 pounds.
  • Drone must remain in operator's visual line of sight.
  • Drone use is limited to daylight-only operation.
  • Drone must yield to other aircraft.
  • Maximum air speed of drone is 100 miles per hour; maximum altitude is 400 feet.
  • Drone may not be operated unless there is a minimum weather visibility of 3 miles.
  • No one may act as pilot or observer for more than one drone aircraft at a time.
  • Pre-flight inspections are required.

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Footnotes

1 14 C.F.R. § 107.

2 The FAA's New Drone Rules Are Effective Today, FED. AVIATION ADMIN, https://www.faa.gov/news/updates/?newsId=86305 (last modified Aug. 29, 2016, 12:07 PM EDT).

3 DRONE is an acronym for Dynamic Remotely Operated Navigation Equipment. See Edwin M. Howard & John D. Robideaux, VESSEL MAP SYNCHRONIZATION USING DYNAMIC VESSEL MAP SYNCHRONIZATION USING DYNAMIC REMOTELY OPERATED NAVIGATION SYSTEMS 1331-38 (1999) (published in the Proceedings of the 12th International Technical Meeting of the Satellite Division of The Institute of Navigation).

4 Fact Sheet – Unmanned Aircraft Systems (UAS), FED. AVIATION ADMIN. (Feb. 15, 2015), https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=18297.

5 Id.

6 Wojciech Moskwa, World Drone Market Seen Nearing $127 Billion in 2020, PwC Says, BLOOMBERG (May 9, 2016, 11:38 AM EDT), http://www.bloomberg.com/news/articles/2016-05-09/world-drone-market-seen-nearing-127-billion-in-2020-pwc-says.

7 Commercial Drone Market Analysis By Product, GRANDVIEW RESEARCH (Jan. 2016), http://www.grandviewresearch.com/industry-analysis/global-commercial-drones-market.

8 See 14 C.F.R. § 1.1 (2016) (defining "aircraft" broadly as "a device that is used or intended to be used for flight in the air"); see also Huerta v. Haughwout, No. 3:16-cv-358, 2016 WL 3919799 at *4 (D. Conn. July 18, 2016) (quoting Huerta v. Pirker, Order No. EA-5730, 2014 WL 8095629 (N.T.S.B. 2014) ("'Aircraft' encompasses drones owned for personal use.")).

9 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 336, 126 Stat. 11, 77-78 (2012): SPECIAL RULE FOR MODEL AIRCRAFT

(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—

(1) the aircraft is flown strictly for hobby or recreational use;

(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;

(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program

administered by a community-based organization;

(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and

(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

(b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

(c) MODEL AIRCRAFT DEFINED.—In this section, the term "model aircraft" means an unmanned aircraft that is—

(1) capable of sustained flight in the atmosphere;

(2) flown within visual line of sight of the person operating the aircraft; and

(3) flown for hobby or recreational purposes.

10 Dan Friedman, FAA Investigating Use of Drone to Shoot New York Congressman's Wedding, NY DAILY NEWS (July 17, 2014, 1:14 PM), http://www.nydailynews.com/news/politics/faa-investigates-drone-congressman-wedding-article-1.1870603.

11 Keith Wagstaff, Fail to Register Your Drone? You Could Be Hit With $27K Fine, NBC NEWS (Dec. 21, 2015), http://www.nbcnews.com/tech/innovation/fail-register-your-drone-you-could-be-hit-27k-fine-n481856.

12 Miriam McNabb, The Black Market in Drones: Why Commercial Operators Need the FAA, DRONELIFE (Sept. 15, 2016), http://dronelife.com/2016/09/15/black-market-drones-unofficial-commercial-operators/ ("Prior to the recent enactment of Part 107, commercial drone operations were prohibited under FAA Regulation, commonly referred to as 'Section 333,' and the only way to fly legally was to apply for a Section 333 Exemption. This was an onerous – and sometimes expensive – process that required the drone operator to hold a pilot's license. Even with a pilot's license, exemptions, especially in the beginning, took months: forcing many drone operators underground, as they realized that they couldn't begin to meet the requirements to operate legally.")

13The FAA has in recent years allowed for commercial drone use through a Section 333 Exemption which allows for commercial use of small UAS without full commercial licensing and certification. Obtaining the exemption requires an application process, a 120-day waiting period, and vetting of the drone and operator by the FAA. Further, the applicant is required to describe the specific manner of use and remain within the scope of the exemption. As of August 2015, about 1200 Section 333 exemptions had been granted in the United States. As of time of publication, this number has grown to 5,552. Section 333, FED. AVIATION ADMIN. (Sept. 23, 2016, 9:46 AM EDT), https://www.faa.gov/uas/beyond_the_basics/section_333/. See also Summary of Small Unmanned Aircraft Rule, FED. AVIATION ADMIN. (June 21, 2016), available at https://www.faa.gov/uas/media/Part_107_Summary.pdf.

14 The possibilities of using drones for commercial purposes are truly unique and nearly limitless. See, e.g., Richard Feloni & Aaron Taube, These Drone- Based Advertisements were Super Cool and Only a Little Creepy, BUSINESS INSIDER (Sept. 29, 2014, 4:49 PM), http://www.businessinsider.com/drones-in-advertising-2014-9 (exploring the many uses of drones for commercial advertising, including using a drone to display menus outside high rise office building windows just before the lunch hour – which resulted in an increase in sales for one establishment to the tune of forty percent).

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