Delivery drones: will Amazon Air see the national airspace?

• Author: Burzichelli, Corinne Dowling

1. DRONE USE A. Evolution of the Industry B. Amazon Air II. CURRENT FEDERAL CIVIL DRONE REGULATION A. The Act B. The Plan C. The Roadmap D. Rulemaking E. Special Rules F. Consequences of Present Regulation III. STATE LEGISLATION IV. PRIVACY CONCERNS V. SAFETY CONCERNS VI. HOW AMAZON COULD REACH THE NAS VII. CONCLUSION This Note will discuss the impossibility of Amazon Air's goal: to bring delivery drones to the national airspace and consumers' doorsteps in the next five years. (1) Specifically this Note will analyze the challenges facing Amazon Air. There are four main obstacles standing in Amazon's way: 1) prohibitive federal regulations, 2) underdeveloped state regulation, 3) growing privacy concerns, and 4) legitimate safety concerns. This Note will analyze the legal and practical difficulties surrounding the integration of delivery drones into the national airspace to determine potential responses by Amazon Air.

   Part I will survey drone use and detail Amazon Air's specific goal--to routinely access the National Airspace System ("NAS"). Part II will discuss federal regulation of drones and its impact on Amazon Air's timeline and objectives. Part III will focus on state regulation to evaluate what current legislation exists and how it will affect commercial Unmanned Aircraft Systems ("UASs"). Part IV will briefly outline privacy concerns and propose actions for both regulatory agencies and also Amazon Air. Part V will convey safety concerns and the solutions available to protect the public. Finally, Part VI will conclude the possibility of Amazon Air's plan and make recommendations to improve its chances of reaching the NAS.

1. DRONE USE

   1. Evolution of the Industry

      Drone use has transformed from a primitive military weapons delivery system to a versatile tool utilized by the public, private, and commercial realms. Indeed, while UAS technology was once limited to the battlefield, current data indicates that over 300 drones have been granted permission to operate in the NAS. (2) Moreover, this number does not include the drones that have found their way into backyards, living rooms, and even the local TGI Fridays. (3)

      In light of this "boom," the burgeoning drone industry has become very profitable. One aerospace consulting firm estimates that "the commercial drone industry is currently worth $14 billion per year," and these numbers are anticipated to grow significantly. (4) In fact, by 2020, the FAA projects that drone use in the U.S. will increase to 30,000 drones in the NAS. (5) This year, 2020, is the same year that the FAA anticipates UASs will have the initial capability to routinely access the NAS. (6) This prospective success has created the hope that the unmanned aircraft industry will be both monetarily lucrative, as well as a source of new jobs. In that regard, it has been estimated that the UAS industry will grow to "a $90 billion industry that creates thousands of jobs in the next decade." (7) This is a significant change from early drone history, which was dominated by military use and model airplane hobbyists. (8) This increase in popularity is in part due to availability. As drones have become more mainstream, the technology has also become more accessible and affordable. Consequently, UASs are being utilized in many different ways.

      Indeed, there are now countless applications for the modem drone. (9) For example, unmanned aircrafts have been introduced in the law enforcement realm (10) and the film industry. (11) Drones are being used for animal and environmental protection, (12) as well as by agricultural, (13) oil and gas companies. (14) UASs have also participated in disaster response. (15) Unsurprisingly, drones have still found popularity with hobbyists. (16) This vast range of uses has now been expanded further--drones are anticipated to be used for delivery.

      Indeed, Amazon, the popular e-commerce platform, has introduced Amazon Air, the drone delivery service of the future. This service, if successful, will explode commercial drone use into both the marketplace and the airspace.

   2. Amazon Air

      The Amazon Air plan was announced by Amazon in December 2013. (17) Amazon's CEO conveyed his hopes that this system will provide its customers with "nearly instant order fulfillment." (18) Specifically, Amazon plans to use its "octocopter aerial drones to deliver packages up to five pounds to any customer within ten miles of a fulfillment center." (19) This goal seems massive, as eightysix percent of Amazon's orders would meet the delivery drones' weight restrictions. (20) However, as of now, there are not enough fulfillment centers to reach a majority of Amazon customers' homes. (21)

      However, this obstacle is easily surmountable as it can be cured by the construction of more fulfillment centers near the highest density delivery regions. This, along with other logistical obstacles, arc comparatively small in the face of Amazon Air's much larger challenges. Specifically, delivery UASs will be affected by the limitations posed by the current and potential regulation of UASs, and the many safety and privacy concerns. (22)

2. CURRENT FEDERAL CIVIL DRONE REGULATION

   Federal regulation is the single greatest obstacle facing commercial drones because it will dictate their operational capabilities. Presently, federal regulation has failed to create a functioning system for delivery drones in the NAS because it prohibits necessary aspects of delivery.

   To begin, UASs are subject to Congressional and subsequently FAA regulation because they seek to operate in the national airspace. (23) Most small UASs will frequently be operating in class G airspace, which is classified as "uncontrolled" by the FAA. (24) Although labeled "uncontrolled," an aircraft flying at this level is still subject to limitations. (25)

   The number of UASs seeking to operate in this airspace has increased significantly, and in response, Congress has sought to safely integrate drones. The first step Congress took to address UASs was the passing of the FAA Modernization and Reform Act of 2012 ("The Act"). (26)

   1. The Act

      The Act was the first legislation passed by Congress to address modem drone use. More importantly, The Act was the first to include provisions specifically aimed at Civil UASs, the classification that would include commercial entities like Amazon Air. (27) Civil UASs are those drones that are not operated and owned by a state actor or agency, and do not fall into the category of hobbyists. (28)

      The Act outlines the integration of Civil UASs into the National Airspace and requires the Secretary of Transportation to complete four separate objectives: (1) produce a comprehensive plan, (2) create a five-year roadmap, (3) promulgate a final rule for small civil UASs, and (4) design a pilot program for UASs. (29) Additionally, The Act provides that the Secretary of Transportation must determine whether some UASs are safe to operate in the national airspace before the completion of the Small UAS Rule. These objectives become the controlling sources of UAS regulation, and thus, each must be analyzed to determine the challenges they create for civil UASs, and specifically Amazon Air.

      After outlining the four objectives, this Note will show that while The Act mandates that Civil UASs must be integrated into the national airspace, the plan, roadmap, and rule do not create a system which would allow Amazon to operate by its original expected date of 2015, or for many years to follow. Rather, this Note will prove that these objectives are either ineffective, by not truly creating a procedure for UASs to enter the NAS, or totally prohibitive, by creating limitations that would absolutely ban the operations contemplated by Amazon Air. Ultimately, federal regulations have severely slowed the progress of drone integration and likely crippled any opportunity to use UASs for deliveries. (30)

      Turning now to the text of The Act, the drone related provisions are contained in Title III, Safety, Subtitle B, Unmanned Aircraft Systems. Within these sections, The Act attempts to address the immediate future of civil drones in the NAS. (31) Specifically, these sections direct the Integration of Civil Unmanned Aircraft Systems into National Airspace System, section 332, (32) and the implementation of Special Rules for Certain Unmanned Aircraft Systems, section 333. (33)

      The Act creates a series of directives aimed at planning, rulemaking, creating test sites, and determining if some drones can operate sooner than others. Turning first to the "planning" requirement, section 332, the "Integration" requires the Secretary of Transportation to develop a comprehensive plan "to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system." (34) This plan, titled the Unmanned Aircraft Systems (UAS) Comprehensive Plan ("The Plan") was released in compliance with The Act in November of 2013. (35)

   2. The Plan

      The Plan presents the immediate "incremental advances" necessary to integrate UASs into the national airspace system. (36) However, these incremental advances do not provide any real progress for the civil drone use anticipated by Amazon Air's delivery system. Rather, these advances focus on research and development ("R&D"). While the FAA anticipates that this R&D will lead to rulemaking and other meaningful regulation, it forces the timeline for delivery drone integration to outside the near future.

      In that connection, there are two dates of entry contemplated by The Plan. In 2015, The Plan expects small civil UASs will be able to access the NAS so long as their operators maintain visual line-of-sight contact. (37) The Plan does not expect the larger civil UASs to gain access to the NAS until 2020. (38) These projections are based on initial capability and therefore indicate that full capability will not be possible until after 2020 for most civil drones. (39) These expected dates are the first indication...