DRONE DELIVERY: THE DANGER OF OPENING THE AIR AS A COMMERCIAL HIGHWAY.

AuthorBusby, Jamie
  1. INTRODUCTION 288 II. FEDERAL AVIATION ADMINISTRATION REGULATIONS FOR COMMERCIAL DRONE USE AND AMAZON'S PROPOSED CHANGES TO SUPPORT THE USE OF DRONES FOR COMMERCIAL DELIVERIES 289 A. Federal Aviation Administration Current Regulations 290 B. Intended Use of Drones for Delivery Purposes by Businesses 292 C. Amazon's Proposal for New FAA Regulation for the Use of Unmanned Aircraft Systems for Commercial Use Which Would Not Require Visual Line of Sight by the Operator 293 1. Segregated Airspace 293 2. Unmanned Aircraft System Requirements For Certain Flight Missions 295 III. PROBLEMS PRESENTED BY THE DESIGNATED AIRSPACE MODEL SUCH AS CONTEMPLATED BY AMAZON FOR DRONE DELIVERY 296 A. Current Trespass Laws and the Use of Drones 297 B. Law Enforcement Protection of Public Safety 301 C. Current Fourth Amendment Interpretations 302 1. Fourth Amendment Issues That Arise In Amazon's Proposal and Possible Solutions 303 a) Classifying the Air as an Open Fields 303 b) Creating Government Regulations Permitting Warrantless Searches on Packages Attached to Drones 304 c) Classifying Drones as Vehicles and Using Established Vehicle Jurisprudence to Control 305 2. Fourth Amendment Issues That Arise In Amazon's Proposal To Which There Is No Reasonable Solution 306 a) Use of technology to secure Probable Cause 306 b) The Cost of Creating and Maintaining a Law Enforcement System That Can Properly Regulate the Commercial Airspace 308 IV. COMMERCIAL DRONE DELIVERY SHOULD NOT BE PERMITTED 309 V. CONCLUSION 311 I. INTRODUCTION

    In today's culture, many enjoy the convenience of delivery services. Whether it is food that is brought to your door when you do not feel like leaving your house, flowers given to someone at their office for a special occasion, or clothes you ordered off the Internet which are placed in your mailbox the next day, people are selecting delivery services that alleviate the need to go into a store to buy the items they need. With the delivery industry flourishing, each business attempts to find better ways to deliver items in a faster and more profitable way. One such proposal for a more efficient system of getting ordered items to the consumer is by the use of drones.

    Amazon, one of the leaders lobbying for the use of drones for deliveries, has already begun trials to begin this new form of package distribution. Amazon created sophisticated drones that have been able to complete delivery within thirty minutes of the customer's order. The hopes of Amazon and other businesses that desire this form of delivery is to cut costs and create more profit because it would require fewer employees, lower costs due to vehicle use, and increase consumer use because of the convenience and speed offered by such a delivery service.

    Currently, the Federal Aviation Administration (FAA) severely restricts the use of drones for delivery purposes; the current guidelines require that all operators must maintain visual line of sight with the drone. Amazon and other companies are lobbying the agency to permit widespread use of delivery drones by creating a complex proposal that differentiates between drone capability and airspace. The Amazon proposal, though, contains minimal safeguards designed to protect the public from the multitude of risks to public safety posed by drones. In this Comment, I argue that the FAA should not, as Amazon urges, open up a portion of the airspace to delivery drones because it is impossible to provide sufficient public protections against the great risks of this technology.

    Part II of this Comment will discuss the background of the FAA's regulation of drones and the suggested revisions businesses are promoting. Specifically, this section discusses, (1) the FAA regulations for commercial drone use, (2) businesses' intended use for drones, and (3) Amazon's proposed changes to support the use of drones for commercial deliveries. Part III examines the inadequacy of Amazon's designated airspace model and proposal in reference to (1) current trespass laws, (2) public safety, and (3) law enforcement ability to stop and search drones. Finally, Part VT will discuss why commercial drone delivery should not be used.

  2. FEDERAL AVIATION ADMINISTRATION REGULATIONS FOR COMMERCIAL DRONE USE AND AMAZON'S PROPOSED CHANGES TO SUPPORT THE USE OF DRONES FOR COMMERCIAL DELIVERIES

    The FAA recently created a new set of regulations regarding small-unmanned aircraft systems (UAS), or drones. (1) These new regulations have created clear guidelines for how businesses can use drones for commercial purposes. (2) Many businesses have begun using drones for photography and videography in professions such as real estate, television and movie productions, mineral industry, agricultural industry, and even in search and rescue efforts. (3) Though the FAA's recent regulations on small-unmanned aircrafts may open the door for many businesses to profit from the use of drones, delivery services are still severely restricted. This section analyzes, (1) the current FAA regulations for drone use, (2) the intended use for drones proposed by businesses, and (3) Amazon's proposal for new regulations regarding commercial use of drones.

    1. Federal Aviation Administration Current Regulations

      An UAS commonly referred to as a drone, is an aircraft operated without the possibility of direct human intervention from within or on the aircraft. (4) The FAA has historically considered model aircrafts to fall within their statutory and regulatory definition of aircrafts, as they are "invented, used or designed to navigate or fly in the air." (5) To address the possible safety concerns UAS pose for full-scale flights and persons on the ground, the FAA in 1981 created a set of five operating standards for model aircraft operators. (6) These standards were voluntary and included (1) restricting operations over populated areas, (2) limiting use around spectators until the aircraft was flight tested and proven airworthy, (3) restricting operations to 400 feet, (4) using observers to assist operations, and (5) requiring devices to give right of ways to manned aircrafts and avoiding flying near manned aircraft. (7)

      In 2007, with the purpose of clarifying prior guidelines, the FAA issued a policy statement regarding UAS. (8) This statement confirmed that model aircrafts fit the regulatory definition of "aircraft" and categorized UAS into three categories, Model Aircrafts, Public Aircrafts, and Civil Aircrafts. (9) Model Aircrafts are aircrafts that are flown for hobby or recreational purposes only and must be flown within visual line of sight of the person operating the aircraft. (10) Visual line of sight means that the aircraft must be visible at all times to the operator, that the operator must use his or her own natural vision to observe the aircraft, and people other than the operator may not be used in lieu of the operator for maintaining visual line of sight. (11) The operator may use corrective lenses or glasses, but binoculars, night vision goggles, or vision-magnifying devices are not permitted. (12) A Public Aircraft is an UAS used by government entity, and a Civil Aircraft is an UAS used by persons or companies for business purposes. (13)

      In 2012, President Obama signed into law the FAA Modernization and Reform Act, which instituted a "special rule for model aircrafts" in Section 336. (14) Once again, this act confirmed that model aircrafts fit the regulatory definition of "aircraft." (15) It also prohibited the FAA from creating "any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft if the following statutory requirements are met." (16) The requirements included (1) UAS must be flown strictly for hobby or recreational use, (2) the UAS must be operated in accordance with community based set of safety guidelines and within the programming of a nationwide community based organization, (3) the UAS cannot weigh more than fifty-five pounds, (4) the UAS must be operated in a manner that does not interfere with and gives way to any manned aircraft, and (5) when flown within five miles of an airport, operator must provide the airport operator and airport traffic control tower prior notice of operation of the UAS. (17) This restriction of FAA regulation however still allows the FAA to issue or modify rules addressing the use of airspace for safety or security reasons. (18)

      The FAA recently created new regulation regarding unmanned aircraft systems to better control the commercial use of drones. (19) Under 14 CFR part 107, the FAA has set out extensive guidelines for when a person may use an UAS for the purpose of transportation of property for compensation or hire. (20) They include that the flight must be conducted within the visual line-of-sight of the operator, meaning that the operator may never fly the UAS beyond where his or her own natural eye sight ends. Also, the UAS cannot be manned from a moving vehicle, (21) and any external loads must be securely attached to the UAS and the aircraft and external load cannot exceed fifty-five pounds at takeoff. (22) Also the entire flight must occur within the bounds of a single state. (23)

    2. Intended Use of Drones for Delivery Purposes by Businesses

      Though the current FAA regulations do not permit it, a possible future commercial use for drones is as a delivery vehicle. Amazon Inc. developed a drone-based delivery system called Amazon Prime Air, in which it proposes to deliver packages, weighing up to five pounds, to customers using small drones within thirty minutes of ordering if the customer is within the available geographic radius of the warehouse. (24) The drones would not be flown by a person on the ground using visual line of sight but rather would use "sense and avoid" technology and GPS to travel to its destination. (25) Amazon is currently operating a private trial in the United Kingdom and is limited to only flying in the daylight hours when there are...

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