By Michael L. Slack, of Slack & Davis, L.L.P.
A Drone by Many Names
Known to most of us as a “drone,” a remotely piloted or operated unmanned aerial vehicles is also commonly referred to as a “remotely piloted vehicle (RPV),” “unmanned aerial vehicle (UAV),” or “unmanned aircraft system (UAS).” All of these names are used interchangeably and typically refer to remotely piloted flying machines.
Drones come in all shapes and sizes and there is a drone for every budget and application.[6] They range from small, inexpensive battery-powered toys that weigh just a few ounces and fly inside a room,[7] to large unmanned aircraft costing millions of dollars that are piloted from a remote location thousands of miles distant, and operate for hours[8] up to 10 miles above the earth’s surface. Drones vary in weight, speed, altitude capability, propulsion system and remote control features. However, drones share a common characteristic: They are all unmanned and depend upon a remote operator or computer[9] to control the drone’s activities.
Over the past several years, the U.S. military has given considerable visibility to the use of drones in its pursuit of terrorists abroad.[10] The military uses drones in lieu of manned attack aircraft in many contexts because the drones are less expensive to operate, have the ability to remain over a target longer, are less detectable by the enemy and do not risk the lives of pilots.[11] However, after a hobby drone was accidentally crashed on the White House grounds, concerns have arisen that terrorists will avail themselves of inexpensive drones to carry out terrorist attacks on Western European and U.S. targets.[12]
Beyond the military sphere, there has been an ever-increasing number of civil drone applications being pursued by businesses. Some of these civilian applications use existing drone products.[13] Others develop drones specifically designed to meet the needs of the application. Drones are being used or developed for fighting forest fires, search and rescue, security surveillance, aerial surveying, filmmaking, crop spraying, refinery surveillance and monitoring, pipeline inspections, real estate development, remote sensing and sampling, wind turbine inspection, cargo delivery,[14] freelance video and photography, conservation and environmental uses and a multitude of other applications. Drones are said to be best suited to deal with the “dull, dirty and dangerous.”[15]
Growth of Drones
The development of drones began in the 1990s, but their affordability and usefulness to hobbyists, as well as a diverse spectrum of the civilian business community, skyrocketed in the early 2000s. There were several factors that stimulated the dramatic increase in drone development and usage. A leading factor was the availability of Global Positioning Satellite (GPS) technology to the civilian sector. With GPS, a drone—and its operator—would always know where it was, and it could be directed to specific GPS coordinates. If communication with the drone was lost, it could be programmed to return to its home base using GPS-based coordinates. Another significant factor was the development of inexpensive non-metallic materials which are very light and strong. These plastic and carbon fiber materials offered critical weight savings to drone designers. Like materials, the availability of lighter propulsions systems offered additional weight benefits to drone developers. In particular, drones using electric motors became possible with lighter batteries offering more endurance. Besides being very quiet, drones with electric motors offer the advantages of no messy liquid fuels and variable thrust which can be controlled very precisely.
By the mid-2000s the drone revolution was underway.[16] Industry groups projected that the drone industry would generate $82 billion in annual revenues by 2025. However, these groups cautioned that the projected growth depended upon prompt and progressive governmental adoption of appropriate legal and regulatory frameworks.[17] Thus, industry found itself waiting on, and practically begging for, the Federal Aviation Administration (FAA) and Congress to provide standards and a framework within which the drone industry could prosper.
Congress Speaks
After years of inaction by the FAA, Congress took action in 2012 and passed the “FAA Modernization and Reform Act of 2012 (FMRA),” directing the FAA to “develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.”[18]
The FMRA contained five key elements. First, it imposed strict deadlines on the Department of Transportation through the Administrator to establish a plan for integrating unmanned aircraft into the existing airspace system and to develop appropriate rules and standards specific to drones. Second, the FMRA required the FAA to develop a comprehensive five-year plan or “roadmap” for integrating drones and establishing an appropriate regulatory framework.[19] Third, the FAA was given authority to grant exemptions and create special rules for drone operators and developers pending final rulemaking.[20] Fourth, the FAA was directed to conduct all safety studies necessary to integrate drones into the national airspace system.[21] Finally, Congress directed the FAA to create a “safe harbor” from rulemaking for model aircraft weighing “less than 55 pounds”[22] which are used for hobby or recreational purposes.
In response to the Congressional mandate for a five-year “roadmap” detailing its plans for drones, the FAA published its first comprehensive report in 2013.[23] The FAA acknowledged that its existing framework of rules applicable to conventional manned aircraft presented significant challenges to accommodate drones:[24]
Although aviation regulations have been developed generically for all aircraft, until recently these efforts were not done with UAS specifically in mind. This presents certain challenges because the underlying assumptions that existed during the previous efforts may not now fully accommodate UAS operations. As an example, current regulations address security requirements for cockpit doors. However, these same regulations lack a legal definition for what a “cockpit” is or where it is located. This presents a challenge for UAS considering that the cockpit or “control station” may be located in an office building, in a vehicle, or outside with no physical boundaries. Applying current cockpit door security regulations to UAS may require new rulemaking, guidance, or a combination of both.
UAS 2013 Roadmap at 15.
As a result of the FMRA, the FAA gave us a sneak, and rather detailed, preview of how it proposed to deal with the integration of drones into the existing aviation regulatory scheme. The FMRA gave rise to the “55 pounds or less” small-drone concept. While this weight maximum was discussed in Sec. 336 of the FMRA dealing with hobby or recreational drones, the 55-pound criteria was later adopted by the FAA in its first set of proposed rules establishing the maximum weight for “small” drones.
Proposed Rules Emerge
On February 15, 2015, the FAA proposed new rules on small drones weighing less than 55 pounds. In summary, the proposed rules:
Established minimum rules and standards for operation of small drones that are being used for commercial or non-recreational purposes;
Exempted small drones used for recreational purposes from the proposed rules so long as the criteria specified in PL 112-95 Sec. 336 was met.[25] The FAA affirmed its authority to enforce its regulations to protect the airspace system from violations by hobby and recreational users.
The 60-day public comment period for the proposed rules ended April 24, 2015.
From an operational standpoint, the proposed rules limit drone weight to a maximum of 55 pounds,[26] require that the operator maintain unaided[27] visual contact with the drone at all times, and restrict operation to daylight hours, a maximum speed of 100 miles per hour, and a maximum altitude of 500 feet above ground level. Operation in designated airspace may occur with permission of air traffic controllers.
Persons who fly small drones are considered “operators” of small unmanned aircraft under the proposed scheme. A person seeking to legally fly a small drone would have to pass an aeronautical knowledge test and receive a security clearance from the Transportation Security Administration. Additionally, an operator would have to obtain an unmanned aircraft operator certificate with a small UAS rating (one that, similar to existing pilot airman certificates, would never expire), pass a recurrent aeronautical knowledge test every 24 months and be at least 17 years old.
As for equipment requirements, an FAA airworthiness certification is not required for the small drone. However, the operator must maintain the drone in condition for safe operation and conduct a pre-flight inspection of the drone to ensure that it is safe for flight. The drone must be registered just like any other aircraft and it must display its aircraft registration markings in the largest practicable size and manner.
The Missing Pieces
What is missing from the proposed rules? Most notably, safety standards that are designed to mitigate the risk of a collision between a small drone and another aircraft. This risk of collision is addressed and acknowledged by the FAA in its 2013 UAS Roadmap. Because drones are unmanned, the traditional system of “see and avoid” taught to pilots for averting mid-air collisions does not translate well to drones. Pilots have difficulty seeing drones visually because of their size. Air traffic controllers have difficulty seeing small drones on radar because of their size and because the materials used to make drones are non-metallic and do not reflect radar signals well.
For its part, a drone does not “see” other aircraft traffic. The drone operator, situated on the ground, and focused on maintaining visual contact with his or her craft has limited or no ability to visually scan the adjoining airspace for approaching aircraft traffic. Unless the drone has technology onboard to provide self-separation from other aircraft through automated systems, the risk of mid-air collisions between small drones and other aircraft is very real with several documented reports of near misses involving drones[28] and airliners.
Despite the obvious and inherent challenges, the initial proposed rules simply require the operator of the small drone to maintain direct visual contact with the drone and avoid other aircraft. Most notably, there is no requirement for any type of device, such as a transponder, to help air traffic controllers and other aircraft see the drone on their tracking equipment. Without a transponder, a small drone will not be visible to air traffic controllers on their radar screens.
There are no lighting requirements for strobes or position lights on the drone that would help the operator and, more importantly, other pilots visually see the drone. Even though small drones are restricted to daylight operations only under the proposed rules, a requirement for strobes or position lights to enhance visibility would seem an appropriate standard to include for the benefit of aircraft pilots seeking to see and avoid[29] drones operating in the same vicinity.
Furthermore, the proposed rules give air traffic controllers authority to allow small drones to fly in controlled airspace, including areas designated as “Class B” airspace.[30] Class B airspace exists around the nation’s busiest airports where drones could easily conflict with air traffic. A collision between a 55-pound drone and an aircraft, such as an airliner, could be catastrophic.
Besides a deficiency in standards to mitigate the risk of collision avoidance with aircraft, the proposed rules also appear to be deficient in the realm of enforcement. In the traditional system, the FAA’s primary enforcement tool for pilots and other certificate holders has been the danger of having the certificate or license suspended or revoked for non-compliance with applicable rules.
As previously noted, hobby and recreational drone users are exempt from the licensing requirement for operators of drones used for commercial purposes. Thus, the deterrence threat that the FAA poses to license or certificate holders is absent when dealing with a non-compliant recreational drone operator. A 17- or 18-year old who is not required to have an operator’s certificate and who never intends to have one has no incentive to play by the FAA’s rules. Such an individual is effectively immune from prosecution by the FAA. In its notice of proposed rulemaking, the FAA acknowledges that it has not prosecuted any non-compliant model drone users.[31]
In the realm of enforcement, the safety, security and privacy issues raised by non-compliant drone operators and hobbyists are far more likely to be a concern of local communities than the FAA, and are offenses more properly suited for local law enforcement authorities and municipal courts than the FAA. Certainly, a night in the local jail or a large fine imposed on a recreational drone user is arguably far more effective in deterring future misconduct than a nasty letter from the FAA. Unfortunately, the proposed rules do not provide any guidance to local authorities on how to deal with the enforcement and disposition of drone mischief in their communities.
The Waiting Game
There is no indication from the FAA when the proposed rules will become final and take effect. Pending adoption of final rules, the FAA has authority, as noted above, to grant exemptions and special circumstances, under PL 112-95 Sec. 333, to applicants for drone operations which are being used for commercial purposes and not hobby or recreational purposes. As of August 14, 2015, 1201 exemptions had been granted to various public and private entities to lawfully engage in commercial operations using small drones. These exemptions are granted by the FAA on conditions that essentially track the operational and aircraft requirements set forth in the proposed rules such that businesses operating drones under an exemption are doing so following the proposed minimum standards set forth in the notice of rulemaking.
Drones Are Local
The existing regulatory structure for aviation is largely federal and is administered by the FAA within the Department of Transportation. The federal model of regulating aircraft[32] is logical since aircraft are by their very nature transient and capable of crossing state lines and traveling great distances.
In sharp contrast, small drones are very local. They are designed to be local with limited range and endurance, and to accomplish tasks that are local. Quite simply, they cannot go very far and whatever mischief they cause will be very near where they are launched. As a result, the risks associated with small drone operations in one city may be very different than another. The risks associated with small drone operation in a rural area are obviously very different than in a populated area.
For drones to flourish as their proponents predict, cities will be called upon to deal with the unique local safety, security and privacy problems[33] that small drones present. Take, for example, a city with a large sports stadium or outdoor music venue. For drone operators, both private and public, there are opportunities to provide security surveillance and crowd monitoring with drones. There are also opportunities for promoters and telecasters to capture compelling video and photographs of the teams, performers and the event scene. With these opportunities there are attendant risks of drones being operated over large numbers of people, in proximity to obstructions and in the same airspace with any combination of tethered balloons, blimps, helicopters or banner-towing aircraft.
The opportunity-risk balancing challenge becomes an even greater concern for local governments when other drone activities and opportunities are considered against the backdrop of a particular city’s layout, risk tolerance and desire to manage drone activity. If drones are ultimately considered for use in cargo delivery, how will the delivery routes be defined? Will the corridors assigned to delivery drones be over highways and streets? How will delivery drones operate in cities with tall buildings? How will drones operating inside cities be separated from police and fire helicopters responding to emergencies? How will the benefits of having drones assisting fire and rescue by providing key intelligence to first responders in dangerous situations be managed against the risks to other aircraft in the vicinity and people on the ground? How will the benefit of drones conducting traffic surveillance be managed against the risk of colliding with air ambulance helicopters approaching and departing urban hospitals?
The point is that the historical model of regulating aircraft and operators at the federal level simply will not work, in the long run, to adequately address safety, privacy and security issues appropriate for each locality—urban or rural, sprawling or densely populated—with highly variable political and cultural systems. While the general language of the FMRA, PL 112-95, seems to foresee the inevitable interaction between local governments and the FAA to manage drone standards, the question is whether local governments will wait on the FAA or enact ordinances to meet their needs. The answer seems to be that they will not wait. Several cities have already passed ordinances dealing with local privacy issues and it is likely that other cities will be moved to address local security and safety issues.[34]
Droning On
While opportunities for drone development and usage abound, a comprehensive and rational system of standards and a meaningful enforcement scheme shared by federal and local authorities appear to be years away from reality. The initial rulemaking by the FAA is a start and is presumably imminent, but given the speed with which drone technology and the spectrum of applications are expanding, the initial rules will be dated and fraught with inefficiencies from the first day of their implementation. Unless the FAA recognizes that local governments can and should play a significant role in shaping drone rules to address the specific safety, security and privacy needs of their communities and they are included in the enforcement scheme, the affected local interests will simply react by banning local usage.
[6] “Unmanned Aircraft Roundup 2015,” published by the American Institute of Aeronautics and Astronautics (AIAA).
[7] Nano Drone remotely piloted quadcopter marketed as “World’s Smallest Quadcopter” and sold by Amazon for $28 (August 2015).
[8] Predator C Avenger, powered by Pratt & Whitney PW545B Turbofan, maximum published ceiling 50,000 feet and published endurance of 18 hours.
[9] A drone operated by computer or an automatic control system may be referred to as a “Intelligent Autonomous Vehicle” or “Autonomous Aircraft.”
[10] “Prominent terrorist suspects killed in drone strikes,” USA Today, March 19, 2015.
[11] See, “Taking advantage of drone technology,” The Daily Californian, October 22, 2013.
[12] “Criminals, Terrorists Find Uses for Drones, Raising Concerns,” Wall Street Journal, January 28, 2015.
[13] “More buzz: Austin drone firm raises $2M to grow,” Austin American-Statesman, August 12, 2015. See also, Exemption No. 11268 granted to HUVRData, L.L.C. permitting use of the AscTec Falcon 8 product.
[14] “Tacocopter Aims To Deliver Tacos Using Unmanned Drone Helicopters,” Huffington Post, March 23, 2012.
[15] Tice, Brian “Unmanned Aerial Vehicles: The Forces Multiplier of the 1990s,” Airpower Journal, Spring 1991.
[16] “Drone industry predicts explosive economic boost,” Washington Times, March 12, 2013.
[17] Id.
[18] Public Law 112-95 “FAA Modernization and Reform Act of 2012’’ Subtitle B-Unmanned Aircraft Systems.
[19] PL 112-95, Sec. 332.
[20] PL 112-95, Sec. 333.
[21] PL 112-95, Sec. 335.
[22] Congress did not clarify whether the 55-pound weight limit was gross vehicle weight with payload or empty weight with no payload.
[23] Integration of Civil Unmanned Aircraft Systems (UAS) Into the National Airspace System (NAS) Roadmap, First Edition-2013, cited as UAS 2013 Roadmap.
[24] The FAA uses the terms “Unmanned Aircraft Systems” or UAS to refer to drones.
[25] The FAA has published an interpretive rule explaining the statutory criteria of PL 112-95 Sec. 336. See, Interpretation of the Special Rule for Model Aircraft, 79 FR 36172, 36175 (June 25, 2014).
[26] Total or gross weight at takeoff is the proposed weight interpretation.
[27] The use of corrective lens is permitted.
[28] In March 2013, an Alitalia pilot on final approach to John F. Kennedy International Airport reported seeing a small drone near his aircraft. On 22 March 2014, US Airways Flight 4650 nearly collided with a drone while landing at Tallahassee Regional Airport. The regional jet was at an altitude of 2,300 feet when it came dangerously close to the drone.
[29] Because the small drone is defined as an aircraft under the FAA’s proposed rules, the “see and avoid rule” of 14 C.F.R. Sec. 91.113 will continue to apply to pilots of aircraft even if the drone is too small to be seen by a pilot.
[30] Class B airspace is defined by the FAA to be “generally that airspace from the surface to 10,000 feet mean sea level (MSL) surrounding the nation’s busiest airports in terms of airport operations or passenger enplanements.” See, Airman’s Information Manual and 14 CFR parts 71, 73 and 91.
[31] Notice of Proposed Rulemaking, Docket No.: FAA-2015-0150; Notice No. 15-01, “Operation and Certification of Small Unmanned Aircraft Systems.”
[32] The federal model apparently evolved from a local city ordinance passed by the City of Kissimmee, Florida in 1908. At the time, there were no planes in Kissimmee, Florida. The first plane would not fly in Kissimmee until 1911 and when it did a cow was killed. The ordinance, which became the model for aviation regulations in the U.S. and in other countries was drafted by the city attorney who had traveled to Paris and observed flying machines being flown by daring French pilots. The impression was apparently sufficient to prompt him to return and author a regulatory scheme to protect the citizens of Kissimmee. See, Rebecca Maksel, Senior Assoc. Editor at Air & Space, “The First U.S. Air Law Was In a Town Without Airplanes,” AirSpaceMag.com, June 8, 2015.
[33] Safety and privacy issues as they relate to drones may be distinct yet closely interrelated. See, John Villasenor, Observations from Above: Unmanned Aircraft Systems and Privacy, 36 Harv. J.L. & Pub. Pol’y 457, 473 (2013).
[34] See, Local Regulation, INSCT Syracuse University (http://uavs.insct.org/local-regulation/) updated May 7, 2015.
