The Drone Revolution, 0216 KSBJ, 85 J. Kan. Bar Assn 2, 31 (2016)

AuthorBob Lambrechts, J.

The Drone Revolution

Vol. 85 J. Kan. Bar Assn 2, 31 (2016)

Kansas Bar Journal

February, 2016

Bob Lambrechts, J.

I. Background

Due to the steadily increasing use of drones, both recreational and commercial, the Federal Aviation Administration (FAA) has determined that drones must be regulated to ensure safety of fight, people, and property on the ground. Te frequency of incidents involving the unauthorized or unsafe use of these small, remote-controlled aircraft has risen dramatically. For example, on December 22, 2015, a drone crashed at a World Cup slalom event and nearly hit Austrian skier Marcel Hirscher in Madonna Di Campiglio, Italy.1 Pilot reports of interactions with suspected unmanned aircraft have increased from 238 sightings in all of 2014 to 650 from January 1 through August 9, 2015.2 Since the publication of those statistics, drone purchases have skyrocketed. Te FAA estimates that more than one million drones, also known as unmanned aerial systems (UAS), were sold during the 2015 holiday season alone.3 In addition, the U.S. is regarded as one of the largest potential markets for commercial UAS.4 Te proliferation of drone use has resulted in increased regulation, and, more recently, an FFA registration requirement for drone users. As of December 21, 2015, owners of drones that weigh in excess of 0.55 pounds are required to register their devices under rules to control the sharp increase of unmanned aircraft in U.S. skies.5 Te registration requirement is driven in part by concerns that drones threaten public safety.

While drone registration is new, the FAA has been regulating their use since 2012 with the passage of the FAA Modernization and Reform Act (FMRA), which prohibits the use of a UAS for a commercial objective without an exemption from the FAA. And those commercial uses for UAS run the gamut. For example, a UAS can quickly produce high-resolution three-dimensional maps of vast geographic areas.6 Another industry significantly impacted by the UAS is flmmaking.[7] UAS are revolutionizing how movies are made by capturing images previously unattainable or attainable only by spending thousands of dollars a day on helicopters. Notably, UAS were used on the sets of Game of Thrones and the newest Star Wars film.8

Drones are even getting into the delivery business. On July 17, 2015 a drone delivered medical supplies from an air-field to a medical clinic in Wise County, Va . 9 Tat was the first drone delivery approved by the FAA and was performed by an Australian drone-delivery startup named Flirtey.10 And, importantly for Kansas, the Association of Unmanned Vehicle Systems International (AUVSI) reports that the agricultural use of UAS could ultimately comprise 80 percent of the commercial market.[11]

This article will discuss the current and rapidly evolving law of UAS from the perspective of federal, state and local law, as well as touch upon the many current and anticipated uses of drone technology.

II. The Growing Role of the UAS Globally and Within the State of Kansas

In 2014, nonmilitary UAS made up a $2.5 billion industry, growing 15 percent to 20 percent annually.[12] Te AUVSI estimates that between 2015 and 2025, the UAS industry will create 100,000 jobs and contribute $82 billion to the U.S. economy.13 Research suggests that the state of Kansas will be in the top ten states to receive economic benefits associated with UAS, and that the economic impact in Kansas alone will exceed $2.9 billion dollars and create an anticipated 3,700 jobs over the next decade.[14]

With the growing capabilities of UAS, the markets they support will likely continue to develop including the agricultural industry, where UAS are making a significant impact. UAS can closely monitor crops regularly and cheaply to improve crop management and yield, and use on private land means that agricultural UAS pose little threat of interference with the rights of others.

Near-infrared sensors can be programed to monitor crop health by decting green, healthy plant mass through the crop's absorption of light that falls within a certain wavelength range. By measuring the ratio of light reflected by the plant in these spectral ranges, plant health can be determined, letting farmers react and improve conditions locally with inputs of fertilizer or insecticide.15 This Normalized Difference Vegetation Index (NDVI) calculation is valuable to agricultural scientists due to the unique spectral signature healthy plants radiate.16 Using NDVI maps derived through the use of multi spectral cameras and associated spectral filtering software, it is possible to generate strong conclusions regarding the status of an active crop via the crop’s spectral reflectivity. When soil testing and field scouting is coupled with highly accurate spectral signature data, crop prescriptions can be quickly generated. Furthermore, infestations and disease outbreaks can be mitigated before they affect other healthy plant material through periodically scheduled spectral scans. Te same concept extends to livestock. Infrared sensors can pick up small differences in animals' temperature to determine if any herd members are sick.

In February 2015, the FAA bestowed upon Kansas State University-Salina the status of the first civil entity in the U.S. to have statewide access for UAS fight operations. Te university has received three Certificates of Authorization (COA) from the FAA, allowing its unmanned systems program to perform research anywhere in the state on public or private property, as long as they have the landowner’s permission.17 Te UAS will be used for researching drought stress and insect infestation.

In addition to agricultural applications, pipelines, power lines, wind towers and processing plants will all benefit from regular aerial monitoring. Te drones’ abilities to sense in three dimensions, take thermal readings, and detect cracks in structures will greatly improve infrastructure inspection. Small UAS are capable of hovering and surrounding infrastructure, such as a bridge or plant, and can provide a new level of detail during such inspections.

UAS are also useful in many other applications. Following a natural or man made disaster, UAS provide a means to quickly navigate debris while gathering information or conducting search and rescue missions. A search and rescue mission is a battle against time, particularly in harsh conditions, and UAS have become a powerful tool because of their ease of deployment. With thermal sendors, UAS can quickly discover the location of lost persons, and are particularly useful at night or in challenging terrain. Te technology is ideal for use by rescue teams because UAS are not loud enough to overpower the human voice in an emergency situation, when people might be shouting for assistance. In addition, the ability of UAS to rapidly deploy and capture an area of interest in concert with site-specific measurements provides an advantage in remedial environmental efforts.

III. The Role of the Federal Aviation Administration

A. Federal Framework

To ensure the maintenance of a safe air transportation system and of navigable airspace free from inconsistent restrictions, the FAA has regulatory authority over matters pertaining to aviation safety. Congress has vested the FAA with authority to regulate the areas of airspace use, management and deficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source.18 The FAA Modernization and Reform Act of 2012 (FMRA) contains language addressing 32 The Journal of the Kansas Bar Association Model Aircraft, which provides a safe harbor for pilots while faying UAS strictly for hobby or recreation as long as all of the conditions set forth in the statute are satisfied.19

Consistent with its statutory authority,20 the FAA requires federal registration to operate a UAS. Registering UAS will help protect public safety in the air and on the ground, aid the FAA in the enforcement of safety-related requirements for the operation of UAS, and build a culture of accountability and responsibility among users operating in U.S. airspace.

B. The FAA Small Unmanned Aircraft System Registry

Registration is the latest step signifying the drone industry’s transition from a hobbyist community to a mass-market commercial industry. New federal regulations require drone owners to register on a government website to receive unique user numbers with which they are required to label any drones they own. Regulators are signaling to drone users that the devices are more than toys, and that misuse could lead to penalties. Regulators say that registration will assist the government in holding reckless drone operators accountable and deter unsafe fights. Te registration process will also put regulators in contact with drone users, enabling better education about drone rules.

The FAA’s small UAS registry became active on December 21, 2015, and ready for UAS owners to use on the FAA web-site.21 A small unmanned aircraft is defined as an unmanned aircraft weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the air-craft.22 Te FMRA limits model aircraft to no more than 55 pounds. All aircraft weighing more than 0.55 pounds (250 grams) and less than 55 pounds must be registered.23 Under the interim final rule requiring registration, owners who previously operated an unmanned aircraft exclusively as a model aircraft prior to December 21, 2015, must register no later than February 19, 2016.24 Owners of any other UAS purchased for use as a model aircraft after December 21, 2015 must register before the first fight outdoors.[25] Owners may use either the existing paper-based process or a new streamlined, web-based system.26 Also, owners using the web-based system must be at least 13 years old to register.27

As part of the registration process, each owner must provide a name, home address and...

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