Drones & the Law What You Need to Know
| Publication year | 2016 |
| Pages | 43 |
| Citation | Vol. 27 No. 6 Pg. 43 |
Robert L. Ellis, J.
No, you can't legally shoot one down.[1]
That answers the most frequently-asked question, but drones, or small Unmanned Aerial Systems (UAS), [2] are beginning to appear everywhere, raising many more questions and presenting unique legal challenges. Enacting state or local regulations regarding these new devices, or advising clients regarding them, requires an understanding of the complex mix of federal, state and common law that applies whenever aviation is involved—and how the law is changing to adapt.
The new high-tech drones
Until recently, the only small pilotless aircraft in private hands were radio-controlled (RC) models flown by hobbyists, generally within a few hundred feet of the person with the transmitter Nonetheless, the Federal Aviation Administration (FAA) recognized early that even "model aircraft can at times pose a hazard to full-scale aircraft in flight and to persons and property on the surface," and in 1981 issued operating standards for model aircraft operations. [3]
RC aircraft never presented much of a safety issue to other airspace users, but the sudden appearance of large numbers of consumer-product drones that can fly for thousands of feet in any direction (including up) while being virtually impossible for pilots to see, is creating a flight safety nightmare. The risk of catastrophic accident is real. As the FAA points out, “we have witnessed a huge influx of casual users, people who fly UAS for entertainment or recreation … The vast majority of these operators do not have the basic aviation training or experience required for pilots of traditional aircraft. They have no knowledge that they may be flying in controlled airspace. Some may have no recognition that their actions could have serious consequences. They are simply having fun with a toy.”[4]
Drones are here to stay—not as toys, but as remarkably useful devices capable of performing tasks that heretofore have been prohibitively expensive or impossible. Almost everyone has seen examples of stunning drone-based high-definition videos. News reports regularly describe creative new ways drones are being put to use: search and rescue, accident investigation and insurance adjustment, rapid blood and transplant organ delivery, and high-definition 3-D mapping. Drones can be programmed to fly the same ultra-precise route repeatedly enabling automated up-close inspection of power lines, bridges, pipelines and wind turbines, as well as real-time, multi-sensor mapping of farms right down to individual plants. In the not-too-distant future drones will have two-way communications capability enabling restaurants to take lunch orders from construction workers—and then deliver the lunches. Police will be able to patrol neighborhoods, remotely investigate crime scenes, question suspects (and pursue them if necessary), and journalists will be able to conduct live on-scene interviews moments after an event occurs. The FAA classifies[5] a UAS as “small” (sUAS) if it weighs up to 55 pounds—far larger than the typical photography drone—and companies are eager to put these “small” drones to work. The FAA has already received numerous applications for permission to start drone-based package delivery.
Federal aspects of drone law
The laws and regulations applicable to drone flights are almost entirely federal. The federal government “has exclusive sovereignty of airspace in the United States”[6] and the FAA sets all standards for flight safety[7] “preempting the entire field from state and local regulation.”[8] Despite its exclusive responsibility for air safety the FAA was blindsided by the advent of small drones; its attempts to address UAS flight safety issues had been focused on large remotely-piloted aircraft that would be in contact with air traffic controllers.[9] Nonetheless, since the FAA’s job is “to provide the safest, most efficient aerospace system in the world,”[10] it has enthusiastically embraced the task of integrating small drones into the mix, and readily acknowledges that it has some catching up to do.[11]
Current federal regulation of drones
The primary federal regulation regarding UAS operations was issued in 2007 and is still in force today: “[N]o person may operate a UAS in the National Airspace without specific authority.”[12] In 2012 Congress passed the FAA Modernization and Reform Act (FMRA)[13] requiring the FAA to come up with comprehensive drone regulations by September 2015; the FAA deliberately missed that deadline in order to take into account the new small drones, as well as the large number of comments and suggestions from the public regarding them. In the meantime the FAA, using its right[14] to grant exemptions and waivers, has implemented a two-tier approach to enable drone owners to obtain that “specific authority” to fly until the comprehensive regulations are issued.[15]
The first tier is for commercial UAS operations—anything that is even slightly business-related—and is a three-step process. First, the owner must apply for and receive an “N-number” aircraft registration for the drone, just as if it were a full-size aircraft.[16] Since full-size passenger aircraft are subject to stringent airworthiness and inspection requirements that are unnecessary for drones, the second step is for the owner to obtain a special “Section 333” exemption[17] from those requirements. A Section 333 petition is not a mere formality; it is exacting and requires detailed information about both the specific drone to be used and the pilots who will fly it. (Only licensed pilots are permitted to fly drones for commercial purposes.[18]) Each petition is carefully scrutinized. Turnaround time is about six months. The third step is to obtain a “certificate of authorization or waiver” (COA) to fly in specifically-described airspace.[19] The COA application can be submitted at the same time as the Section 333 petition. If the operator will never fly the drone more than 200 feet above the ground, no separate COA application is needed since every 333 exemption comes with an automatic COA for flights up to that altitude.
As a practical matter,[20] any commercial organization or individual who owns a drone must obtain an N-number, a Section 333 exemption and a COA in order to legally fly it—with one curious exception: The FAA is statutorily prohibited from regulating “model aircraft” flown for “hobby or recreational use.”[21] This carve-out was intended to protect RC hobbyists but instead has created confusion: Not only is the term “model aircraft” defined so broadly that any drone can qualify, but whether a drone constitutes a “model aircraft” depends on how it is being flown.[22] The exact same drone flown along the exact same route, minutes apart, might be an exempt, unregulated “model aircraft” that can be legally flown by a child for one flight and a non-exempt sUAS requiring full compliance with registration, exemption and pilot requirements for the other. Amazingly, while the FAA routinely imposes altitude restrictions for flights under a COA,[23] it is statutorily barred from imposing altitude restrictions for “recreational” flights.[24]
Nonetheless, because the FAA is permitted to pursue enforcement actions against anyone, even hobbyists, who create a danger to flight safety,[25] the FAA can impose flight restrictions on recreational drone operators,[26] and has imposed a de facto altitude restriction of 400 feet for recreational flights.[27]
The “recreational use” exception makes little sense from a flight safety perspective. For business owners it also creates a strong incentive to pretend that a flight is for “recreational use.” It is likely that the “recreational use” exception and the FAA’s inability to regulate drone recreational flights will be substantially changed. In the meantime, all the FAA can do is try to scrutinize flights, and if a “recreational” flight is really business-related, the FAA will treat it as an “operation of a UAS in the National Airspace without specific authority.” In such cases, the FAA will usually send a warning letter, but in egregious cases it will institute an enforcement action. The FAA has already fined one company $1.9 million for 65 unauthorized flights over densely populated areas.[28]
Since the FAA is prohibited from regulating recreational sUAS flights, it has instead issued numerous guidelines and launched a publicity campaign called “B4UFLY”—including a smartphone app—to try to educate the thousands of new drone operators on how to fly safely in the national airspace system.[29] It has also decided that a simplified, non-N-number registration of all recreational-use drones...
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