small drone

Some of the legal issues discussed in this blog merit a more in-depth analysis and discussion. That level of analysis and discussion, however, is not well-suited for a blog, due to length and other issues.

For that reason, we also publish in other forums which are better suited to a more in-depth analysis and discussion. An example of an issue meriting more in-depth analysis and discussion is the tension between federal versus state regulation of drones.

State and local laws regulating drones often conflict in some way with both the FAA’s assertion of exclusive authority over the national airspace and its resolve to establish a single national policy for drones.

To address these contemporary and dynamic issues, Fox Rothschild attorneys Mark Connot and Jason Zummo, members of the firm’s UAS/Drones practice group, recently authored Everybody Wants To Rule the World: Federal vs. State Power To Regulate Drones, to be published in the widely recognized journal, The Air & Space Lawyer, Volume 29, Number 3, 2016.

In the article, Connot and Zummo analyze the ways in which federal preemption currently applies in the aviation context and the potentially fraught relationship between the interests of federal, state, and local governments in regulating drones. In addition to highlighting a recently introduced federal legislative measure that could provide a path to reconciling those regulatory interests, the authors conclude that state and local authorities should regulate drone uses with restraint, recognizing both the breadth of federal regulatory authority over aviation and the need to encourage, not suffocate, this burgeoning industry.

Click here to view the full article.

Published in The Air & Space Lawyer, Volume 29, Number 3, 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

FAA Privacy

As a uniquely transformative technology, drones have the capacity to enrich our daily lives with innovative services, safer infrastructure, new forms of recreation, and countless  economic opportunities. These positive characteristics, however, cannot erase the risks drones pose to individual privacy. But the FAA opted not to include any privacy provisions in Part 107 for one important reason: it couldn’t.

Drone technology sparks concerns about personal privacy, data privacy, private property rights, and intellectual property rights—often stemming from cameras and other high-tech equipment installed on drones. But there appears to be little agreement about the extent to which drone integration poses risks for privacy intrusions, how privacy concerns should be addressed, and the FAA’s role in efforts to address these concerns.

In response to its Notice of Proposed Rulemaking entitled Operation and Certification of Small Unmanned Aircraft System, the FAA received voluminous commentary that revealed deep discord on privacy issues from the public, industry stakeholders, and other agencies with authority and expertise. See 80 FR 9544, Feb. 23, 2015.

Many commenters raised concerns about drone operations over private property without approval from businesses, institutions, or property owners. Some asserted that the FAA should include provisions in Part 107 to protect privacy; others suggested the FAA address privacy in a future rulemaking. Still others took the position that privacy regulations are beyond the scope of this rulemaking and FAA authority or asserted that existing law already adequately addresses privacy issues.

Many commenters emphasized that privacy concerns are best addressed at the state level. Some recommended a federally commissioned review of 1) the technological neutrality of FAA drone proposed rules led by the Department of Commerce and 2) of the adequacy of comparative technology-neutral privacy regulations led by the Department of Justice.

Among policymakers, industry, advocacy groups and members of the public, it is clear that a substantial debate is ongoing regarding the extent to which drone operations pose truly novel privacy issues, and whether those issues are addressed by existing legal frameworks.

 surveillance drones

FAA Authority Concerning Privacy Rights

The FAA’s authority to make rules is specifically tied to its safety mission: to provide the safest, most efficient aerospace system in the world. Concerns that drones pose risks to individual privacy are typically related to technology and equipment that may be installed on a drone or manned aircraft, but are unrelated to the safe flight of the aircraft. Indeed, pilots have placed cameras and other sensors on aircraft for a variety of purposes for decades (e.g., news helicopters, aerial surveys, film/television production, and law enforcement). Yet the FAA has never extended its reach to regulate the use of cameras and other sensors extraneous to the safe operation of aircraft to protect individual privacy.

Stated bluntly, the FAA simply lacks rulemaking authority to issue or enforce regulations specifically aimed at protecting privacy interests between third parties. [1] Part 107, in particular, is being conducted under the 1) FAA Modernization and Reform Act of 2012 (FMRA), 2) 49 U.S.C. § 40103(b)(1) and (2), and 3) 49 U.S.C. § 44701(a)(5). Each statute focuses on the safe operation of aircraft in the National Airspace System (NAS). So, in light of the FAA’s long-standing mission and authority as a safety agency, it would be overreaching for the FAA to enact regulations concerning privacy rights.

In § 332(a) of the FMRA, Congress required the FAA to develop a comprehensive plan to safely accelerate the integration of civil drones into the NAS. That mandate includes specific direction regarding the contents of the plan, which addressed the safe and efficient integration of drones into the airspace. But it did not require consideration of privacy implications.

What is more, under FMRA § 332(b), Congress directed the FAA to issue a final rule on small drones that allows for civil drone operations in the NAS. And FMRA § 333 directs the FAA to determine whether drone operations posing the least amount of public risk could safely be operated in the NAS.

If the FAA determines, pursuant to § 333, that certain drones may operate safely in the national airspace system, then the FAA must establish requirements for the safe operation of these systems in the NAS, prior to completion of the drone comprehensive plan and rulemaking required by § 332.

Furthermore, 49 U.S.C. 40103(b)(1) and (2) charge the FAA with issuing regulations 1) to ensure the safety of aircraft and the efficient use of airspace; and 2) to govern the flight of aircraft for purposes of navigating, protecting and identifying aircraft, and protecting individuals and property on the ground. Additionally, 49 U.S.C. 44701(a)(5) requires that the FAA prescribe regulations it finds necessary for safety in air commerce and national security.

In essence, none of the drone-related provisions of the FMRA directed the FAA to consider privacy issues when addressing the integration of small drones into the airspace, or mandated the inclusion of privacy considerations in the drone comprehensive plan. Reading such a mandate into the FMRA would be a significant expansion beyond the FAA’s long-standing statutory authority as a safety agency.

That is not to say the federal government is ignoring privacy concerns. On February 15, 2015, President Obama issued the Presidential Memorandum, “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems.” That memorandum directed the National Telecommunications and Information Administration (“NTIA”) to establish a multi-stakeholder engagement process—including stakeholders from the private sector—to develop and communicate Best Practices for privacy, accountability, and transparency issues regarding commercial and private drone use. On May 18, 2016, the stakeholders came to a consensus and issued a document on Best Practices for privacy and other issues surrounding drone use.


 [1] When the FAA is collecting, maintaining, and using information about individuals, the FAA must comply with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable legal requirements related to privacy.

Patience is bitter, but its fruit is sweet.” – Aristotle

Yeah, well, you know, that’s just, like, your opinion, man.” – The Dude

It has been a long time coming.

Indeed, it was over 4 years ago that Congress approved the FAA Modernization and Reform Act of 2012 (FMRA) requiring the FAA to integrate drones into the National Airspace System. To that end, the FMRA directed the FAA to issue rules to regulate commercial drones and have the rules finalized by September 30, 2015.

In accordance with this congressional mandate, in February 2015, the FAA published a Small UAS Notice of Proposed Rulemaking (NPRM)—or Part 107. But the September 30, 2015, deadline came and went without any word from the FAA.

Finally, on June 21, 2016, the FAA released its Part 107 rules regulating the commercial operation of drones weighing less than 55 pounds. These rules do not apply to hobby or recreational drones.

The Part 107 rules go into effect today, August 29, 2016.

 new regulations

Before the issuance of these new rules, a person seeking to fly a drone for commercial purposes was required to petition the FAA for authorization.

In particular, there were 3 ways to lawfully conduct drone operations: (1) as public aircraft operations pursuant to the requirements of the public aircraft statute and under a Certificate of Waiver or Authorization (COA) from the FAA; (2) as limited commercial operations by type certificated drone, provided the operator obtains a COA from the FAA; or (3) pursuant to Section 333 of the FAA Modernization and Reform Act (FMRA) grant of exemption provided the operator obtains a COA from the FAA.

In the upcoming months, the FAA plans to continue to enhance flexibility for those operating drones commercially by issuing more rules and regulations. In fact, by this December it is likely that the FAA will propose a rule for safely and securely flying over persons not associated with a drone operation. See 14 C.F.R. § 107.39. Also, a few months after that, many expect that the FAA will propose rules enhancing flexibility for those operating drones commercially under Part 107—such as operating drones at night. See 14 C.F.R. § 107.29.

But until the FAA issues additional rules and regulations, remote pilots must traverse the usual legal channels—if not allowed under Part 107 or the Part 107 certificate of waiver. This includes registering their aircraft under 14 C.F.R. Part 47, or pursuing a certificate of waiver or authorization, a certificate of aircraft worthiness, or a Section 333 Exemption. Hopefully these upcoming regulations will further streamline the legal and administrative processes as drone technology continues to evolve.

In June 2016, the FAA released its final Part 107 rules, allowing the operation of commercial drones in the National Airspace System (NAS). Whether these rules are infringing on the First Amendment is a developing topic. In Part I, we discussed the First Amendment and the different standards of review courts apply to determine whether restrictions on speech are constitutional. Here, we will explore and analyze the FAA’s argument that Part 107 is consistent with the First Amendment.

Restrictions on Speech in a Nonpublic Forum

Restrictions placed on activities that occur in a nonpublic forum receive the lowest level of First Amendment scrutiny. As noted in Part I, whether all U.S. airspace is a public or nonpublic forum is not clear.

Assuming, for the sake of argument, that airspace is a nonpublic forum, the FAA may impose restrictions in the NAS that are “reasonable and viewpoint neutral.” This reasonableness analysis focuses on whether the limitation is consistent with preserving the property for the purpose to which it is dedicated.

The FAA argues that Part 107 directly addresses its interest in preserving the safety of aircraft flying in the NAS, as well as the safety of people on the ground. Thus, Part 107 is reasonable.

The FAA also asserts that Part 107 is viewpoint neutral because it does not specifically target a certain opinion or stance. In short, the FAA believes that Part 107 is consistent with the First Amendment under this standard of review.

Incidental Restrictions on Speech in a Public Forum

Now, let’s assume that the NAS is a public forum. On that basis, the FAA asserts that the appropriate category in which to evaluate Part 107 would be as an incidental restriction on speech. In particular, the FAA posits that the activity regulated by Part 107—flying a drone—is not speech or an expressive activity.

Instead, according to the FAA, the flight of a small drone has only an incidental relationship to expressive conduct because it could be used to assist an expressive activity, such as recording via camera. At bottom, the FAA contends that attaching a camera to a drone simply does not transform flying that drone into expressive conduct.

But as noted in Part I, the U.S. Supreme Court has “acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope” of the First Amendment. In fact, conduct designed to convey a message to an audience is protected under the First Amendment.

Moreover, the First Amendment broadly protects photography and videography as speech that is intended to convey a message. Several courts have reaffirmed that videography and photography—key parts of the speech process and necessary to the distribution of information—qualifies as speech or expressive activity.[1] Accordingly, using drones to capture images and videos with the intention of sharing that message with an audience likely qualifies as speech that is intended to convey a message and is therefore protected under the First Amendment.

The FAA contends that Part 107 passes intermediate scrutiny. Part 107, according to the FAA, addresses aviation safety and does not directly regulate reporting or other expressive activity.

Further, the FAA asserts that anyone seeking to use a small drone for photography or videography in a manner not permitted under Part 107 is free to use another method of photography or videography. For example, a person could use a manned aircraft, film from a tall structure or landmark, film from the ground, or use specialized equipment.

The FAA concludes that because Part 107 is content-neutral and narrowly focused on the substantial government interest of regulating aviation safety, it meets the constitutional standard for an incidental restriction on speech, and enforcement would not implicate the First Amendment.

Time, Place, and Manner Restrictions on Speech in a Public Forum

To begin with, let us tweak our previous premise to assume that flying a drone in a public forum does qualify as speech or an expressive activity—which of course the FAA disputes. As noted in Part I, a constitutionally permitted time, place, or manner restriction on speech occurs when the regulation is 1) content-neutral, 2) narrowly tailored to serve a significant government interest, and 3) leaves open ample alternative channels of communication.

The FAA contends that Part 107 is consistent with the First Amendment as a permissible time, place, or manner restriction on speech for three reasons.

First, the FAA asserts that Part 107 is content-neutral because Part 107 applies equally to all remote pilots of small drones subject to FAA regulation, regardless of content. The regulation “is not being applied because of disagreement with the message presented.” According to the FAA, there is no question as to the content-neutrality of the regulation in Part 107.

Second, the FAA maintains that Part 107 fulfills several legitimate needs, the most important of which is providing the safest, most efficient airspace system in the world. The FAA contends that all the provisions in Part 107 align with that principle. Hence, Part 107 is narrowly tailored to achieve a significant, substantial, and important government interest. Also, the FAA asserts that to discard the Part 107 provisions at issue would conflict with the FAA’s stated mission of providing the safest airspace system in the world.

Lastly, the FAA claims that adequate alternative channels of communication are available for operations that are not allowed under the provisions of Part 107. The FAA notes that a First Amendment analysis does not require that a regulation be the least restrictive means of achieving the government interest, only that there not be a less restrictive alternative that serves the government’s interest as efficiently as the regulation at issue.

The FAA points to the variety of other reporting, photography, and videography tactics that have been used prior to the existence of small drones that continue to be available to this day. For example, the capability to conduct aerial photography and videography using manned aircraft remains unaffected by this rule.

To sum, the FAA contends that Part 107 regulates activity in a nonpublic forum: the NAS. If we assume, for the sake of discussion, that the NAS is a public forum, the FAA contends that the proper framework in which to view the provisions of Part 107 is not under the category of time, place, and manner restrictions, but under the category of incidental restrictions on speech.

The FAA asserts that the flight of a small drone is not speech; it is conduct other than speech which may incidentally restrict speech. Yet the FAA maintains that even if Part 107 were to be analyzed using the more stringent time, place, and manner framework, the provisions of Part 107 would still be consistent with the First Amendment.

The FAA believes that Part 107 does not infringe on First Amendment rights. Yet until challenged and litigated in court, there will continue to be legal ambiguity because several questions linger: is U.S. airspace is a public or nonpublic forum?; does flying a drone qualify as speech or expressive activity under the First Amendment?

Answers to questions like these will help orient courts to determine whether First Amendment rights are being infringed. In addition to Part 107, a litany of existing or proposed state and local laws—intended to address the privacy concerns of citizens and to restrict using drones to capture and share data—may also be vulnerable to First Amendment challenges.

[1] See, e.g., Larsen v. Fort Wayne Police Dep’t, 825 F. Supp. 2d 965, 980 (N.D. Ind. 2010); Glik v. Cunniffe, 655 F.3d 78, 82-83 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).

Drones have a long history of being used to capture and share data. Beginning in the 1800s enterprising photographers used balloons and kites to lift cameras hundreds of feet into the sky to capture stunning images of American cities. Similarly, in Europe, not only were kites and balloons used to capture aerial shots, photographers’ also affixed cameras to pigeons for wartime surveillance. These early—and archaic—uses of drones show some of the unique benefits drones offer those seeking to capture and share information today.

In 2012, Congress approved the FAA Modernization and Reform Act requiring the FAA to establish comprehensive regulations for flying small drones and integrating them into the National Airspace System (NAS). To that end, in June 2016—over 4 years later—the FAA released its Part 107 rules to regulate commercial drones weighing less than 55 pounds. But those rules may be infringing on First Amendment rights, including freedom of the press and the right of individuals to gather information. Many argue that various aspects of Part 107 are unconstitutional because they are not sufficiently narrowly drawn and adequately tailored to respond to the government interest for which they were created to address.

The Part 107 rules that many argue are unconstitutional include the following: 1) the ban on drone flights over populated areas (14 C.F.R. §§ 107.39, 43, 45, 47); 2) the specific airspace restrictions (14 C.F.R. §§ 107.41, 51); 3) the licensing regime for drone operators (14 C.F.R. §§ 107.12, 13); 4) the prohibition on nighttime operations (14 C.F.R. § 107.29(a)); 5) the visual line-of-sight requirements (14 C.F.R. § 107.31); 6) the ban on operating a small drones from a moving vehicle (14 C.F.R. § 107.25); and 7) the ban on simultaneous operation of multiple drones (14 C.F.R. § 107.35).

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The First Amendment

The First Amendment to the U.S. Constitution states, in pertinent part, that “Congress shall make no law…abridging the freedom of speech, or of the press.” This language restricts the government’s ability to constrain citizens’ speech; but it is not absolute. Under certain circumstances, the government can restrict speech.

At first glance, the First Amendment appears to bar only laws that abridge speech. But the First Amendment does not just protect the spoken or written word. In fact, the U.S. Supreme Court has acknowledged that conduct may be sufficiently infused with elements of communication to fall within the scope of the First Amendment.

Generally speaking, to qualify for First Amendment protection, a person must show that he or she has a message to be communicated and an audience for that message, notwithstanding the medium through which that message is communicated. In short, conduct designed to convey a message to an audience, such as the use of drones for photography and videography as part of the newsgathering and reporting process, qualifies for First Amendment protections.

The extent to which the Government may restrict speech depends on three things: 1) whether the property or forum is public or nonpublic, 2) the content of the speech, or 3) the manner in which it is regulated.

For purposes of a First Amendment analysis, public property fits into one of three main categories: 1) a public forum, 2) a designated public forum, or (3) a nonpublic forum. Any public property that is neither a public nor a designated public forum is considered a nonpublic forum. Public fora are places “that have traditionally been devoted to expressive activity,” such as public parks, beaches, and sidewalks.

For content-based restrictions of speech in public fora, the U.S. Supreme Court applies a level of review known as “strict scrutiny.” This means that the Court will uphold a content-based restriction only if it is necessary to promote a compelling interest and is the least restrictive means—i.e., narrowly tailored—to further the articulated interest. Strict scrutiny is a difficult standard to meet. Because the government is not constitutionally allowed to favor one type of content or idea by suppressing or otherwise burdening another type of content or idea, a demanding analysis is required.

Non-content based restrictions on speech are less likely than content-based restrictions to violate the First Amendment because the Supreme Court applies an intermediate scrutiny framework—a standard of review less onerous than strict scrutiny. Under intermediate scrutiny, a restriction on speech must advance a “significant,” “substantial,” or “important,” (but not necessarily “compelling”) government interest. And the restriction must be narrowly tailored to achieve that interest. Yet it does not, as with content-based restrictions, have to be the least restrictive means to advance the governmental interest.

There are two categories of non-content-based restrictions on speech: (1) incidental restrictions, which are restrictions aimed at conduct other than speech, but which incidentally restrict speech; and (2) time, place, or manner restrictions on speech. To be clear, the courts analyze incidental and time, place, and manner speech restrictions under intermediate scrutiny.

Designated public fora are nonpublic fora that the government affirmatively opens to expressive activity. As with public fora, content-based restrictions on designated public fora must pass strict scrutiny.

Areas not traditionally or explicitly opened to expressive activity are deemed nonpublic fora, which are subject to a more lenient standard of scrutiny. Restrictions on nonpublic fora do not violate the First Amendment as long as the restriction is 1) reasonable in light of the purpose served by the forum and 2) viewpoint neutral. Examples of nonpublic fora include airport terminals, highway overpass fences, and interstate rest stop areas (including perimeter walkways).

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Is U.S. Airspace a Public or Nonpublic Forum?

Relying on a Ninth Circuit case, Center for Bio-Ethical Reform, Inc. v. City & County of Honolulu, the FAA argues that U.S. airspace is a nonpublic forum. In examining the history and purpose of U.S. airspace, the Ninth Circuit concluded that U.S. airspace does not fit the public forum category because it is not among those places that “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”[1] Moreover, the Court noted that “one would be hard pressed to find another forum that has had its access as historically restricted as U.S. airspace.”

A traditional public forum is property that has as “a principal purpose…the free exchange of ideas.” The Ninth Circuit held that in light of the numerous restrictions placed on the use of U.S. airspace, its principal purpose can hardly be characterized as “promoting the free exchange of ideas.” In examining the physical characteristics of the airspace, the Court found that airspace is not an extension of the fora below because airspace is physically separate, requires special equipment and authorization for access, and has never typically been a locus of expressive activity.

For all that, many believe that airspace is a public forum, arguing that the holding in Center for Bio-ethical Reform should be limited to the facts of that case. They contend that Center for Bio-ethical Reform involved manned aircraft flying above 500 feet in altitude; not drones flying below 400 feet. Also, they argue that Center for Bio-ethical Reform does not answer the key question of whether a drone operating just above a public forum—e.g., 50 feet above a public park—should be considered as operating within the public forum.

Whether certain provisions of Part 107 infringe on the First Amendment is a developing topic. In the next post, with the principles discussed above in mind, we will explore and analyze the FAA’s argument that Part 107 is consistent with the First Amendment irrespective of what standard of review applied.

[1] The Ninth Circuit ruled out the possibility of airspace being classified as a designated public forum because the regulated airspace is the antithesis of an “intentional [ ] opening [of] a nontraditional forum for public discourse.”

Seeking to reinvent the delivery process for humanitarian, online retail, and food delivery industries, a Nevada company successfully executed—a few months before the release of Part 107—the first fully autonomous drone delivery in an urban setting. With a pilot and a few visual observers on standby, a black six-rotor drone flew itself along a pre-determined delivery route dropping off a five and a half pound package containing bottled water, emergency food, and a first aid kit at an uninhabited house. This was a milestone for drones and autonomous systems.

Drone Package

Part 107 allows drones to operate autonomously under certain conditions. The FAA decided to permit autonomous drone operations for two reasons. First, autonomous drone operations have many practical applications, including agricultural operations, aerial photography, and search and rescue.

Second, the FAA recognized that the ability for a drone to fly autonomously could add significant utility to a small drone operation and would further encourage innovation in the industry. At the same time, Part 107 does not permit completely autonomous drone operations. Part 107 is a step in the right direction, however, foreshadowing a not-to-distant future in which drones deliver goods directly to a person’s doorstep.

An autonomous operation is generally considered an operation in which a remote pilot-in-command (RPC) inputs a flight plan into a ground control station which sends it to the autopilot onboard the drone. The link between the ground control station and the drone is referred to as the command and control link. During automated flight, flight control inputs are made by components onboard the drone; not from the control station. Thus, the RPC could lose the command and control link to the drone and the drone would still continue to fly the programmed mission or return home to land.

From a legal perspective, Part 107’s allowance of autonomous drone operations is subject to a few conditions. Most importantly, under 14 C.F.R. § 107.19(e), the RPC must retain the ability to direct the drone—through manual manipulation of the flight controls or through commands using automation—to ensure compliance with the requirements of part 107. The ability of the RPC to take direct control of the drone is done through the command and control link—an essential requirement for operating safely.

In any event, these Part 107 requirements include, but are not limited to, the following: 1) the drone must remain within visual line of sight (14 C.F.R. § 107.31); 2) the drone must not pose an undue hazard in the event of loss of positive control (14 C.F.R. § 107.19(c)); 3) the drone must yield the right of way to all other users of the national airspace system (NAS) (14 C.F.R. § 107.37); and 4) the drone must avoid flying over a human being who is not directly participating in the drone operation or not under a covered structure (14 C.F.R. § 107.39).

Moreover, Part 107 allows remote pilots’ to conduct operations that deviate from certain Part 107 regulations—mentioned in 14 C.F.R. § 107.205—if they request a certificate of waiver from the FAA. But not all of those regulations can be waived. Simply put, the rules do not allow a waiver of 14 C.F.R. § 107.19(e) for drones to operate autonomously without a RPC having the ability to control the drone. So, at present, a completely autonomous drone operation is not allowed because the RPC must be in place to take control if necessary.

The FAA considered allowing fully autonomous drone operations. It was ultimately determined that the technology is not sufficiently developed to alleviate the safety concerns of the low-altitude flying public. Indeed, the FAA acknowledged the technological advancements in anti-collision sense and avoid systems and that one day these systems may be integrated into an autonomous drone to aid the pilot in avoiding hazards.

At this time, however, the FAA determined that there is insufficient data to establish that drone equipage is able to detect other nearby aircraft in a manner that is sufficient to provide a substitute for the human pilot’s ability to see and avoid those aircraft. Hence, a drone may be unable to, without human input, yield the right of way to another user of the NAS that may enter the area of operation.

Until the FAA provides additional regulations, companies seeking to conduct fully autonomous operations must pursue the traditional legal channels such as registering their aircraft under 14 C.F.R. Part 47, or pursuing a certificate of waiver or authorization, a certificate of aircraft worthiness, or a Section 333 Exemption.

On June 21, 2016, the FAA released what is known as Part 107, which are the FAA’s rules regulating the commercial operation of drones weighing less than 55 pounds. Before the issuance of these new rules, however, a person seeking to fly a drone for commercial purposes was required to petition the FAA for authorization. In particular, there were three ways to lawfully conduct drone operations: (1) as public aircraft operations pursuant to the requirements of the public aircraft statute and under a Certificate of Waiver or Authorization (COA) from the FAA; (2) as limited commercial operations by type certificated drone, provided the operator obtains a COA from the FAA; or (3) pursuant to Section 333 of the FAA Modernization and Reform Act (FMRA) grant of exemption provided the operator obtains a COA from the FAA.

Limbo

In an effort to streamline the operations of drones, the FAA issued the Part 107 rules. Those rules provide clarification and enhanced flexibility for those operating drones commercially. But many individuals that petitioned the FAA for a Section 333 Exemption prior to the release of those new rules are now in limbo. The affected petitioners are awaiting next steps from the FAA in determining the status of their Section 333 Exemption petitions.

Fortunately, the FAA has been notifying petitioners of the status of their Section 333 Exemption petitions. The FAA is now placing Section 333 Exemption petitioners in one of three tiers which serve to illustrate what steps the petitioner can take:

Tier Initial Assessment FAA Action Action by Applicant
1 The required operation of the drone may be conducted entirely under Part 107 without a waiver or exemption. The FAA will close the applicant’s docket. The FAA cautions the petitioner to carefully review Part 107 to ensure safe operation of the drone without additional regulatory relief.

The petitioner may begin operating the drone in compliance with the new rule on the effective date—August 29, 2016.

If the petitioner believes the operation of the drone falls in either Tier 2 or Tier 3, and the petitioner has not heard from the FAA within 60 days, contact the FAA (333exemptions@faa.gov).

2 The requested operation of the drone must be conducted with a waiver under Part 107. The FAA will contact the petitioner within 60 days.  The FAA will close the petitioner’s docket and consider their petition for exemption as a waiver application. If the petitioner believes the original request requires a waiver and does not hear back from the FAA within 60 days, contact the FAA (9-AFS-800-Part107Waivers@faa.gov).
3 The requested operation of the drone may not be conducted under Part 107 or waiver without further regulatory relief. The FAA will contact the petitioner within 60 days, and will continue to work on the petition for exemption. If the petitioner believes the original request requires an exemption (not a Tier 1 or 2 exemption), and the petitioner does not hear back from the FAA within 60 days, contact the FAA (333exemptions@faa.gov).

As the table suggests, remote pilots’ seeking to operate their drones higher than 400 feet, at night, over people, or any other operation deviating from the Part 107 regulations, can seek a certificate of waiver from the FAA. 14 C.F.R. §§ 107.200–205. Yet not all of those regulations can be waived. For example, the rules do not allow a waiver for 1) the operation of a drone from a moving vehicle or aircraft to carry the property of another for compensation or hire 2) the operation of a drone beyond the visual line of sight to carry the property of another for compensation or hire 3) the operation of a drone weighing 55 pounds or heavier, or 4) conducting autonomous operations without a remote pilot having the ability to direct the drone to ensure compliance with the requirements of Part 107.

So, until the FAA provides additional regulations, companies intending to conduct those operations must traverse the usual legal channels such as registering their aircraft under 14 C.F.R. Part 47, or pursuing a certificate of waiver or authorization, a certificate of aircraft worthiness, or a Section 333 Exemption. Hopefully the new regulations and the notices from the FAA will help streamline the legal and administrative processes as these regulatory laws evolve. Stay tuned as we keep you updated on the latest news in drone regulatory compliance.

Lynnel Reyes, a summer associate in the firm’s Las Vegas office, also contributed to this post.

Lynnel Reyes writes:

While many people are anxiously awaiting the day for companies such as Amazon, Walmart, and Google to provide packaged delivery services by way of drones, other companies are taking drone transportation one step further.

EHang, Inc. debuted a passenger-carrying drone at the 2016 Consumer Electronics Show in Las Vegas earlier this year. The drone is self-automated and can transport up to one person at a time to their desired destination with a flight time of up to approximately 25 minutes. Earlier this month, EHang announced it expects to begin testing the passenger-carrying drone in Nevada later this year.

However, as we discussed in an earlier article regarding drone deliveries, do not expect to see drone package deliveries, let alone passenger-carrying drones, any time soon. Not only are there technological challenges to overcome before passenger carrying drones become a reality, but there are also legal issues that must be overcome.

The FAA recently released its Part 107 regulations regarding the commercial use of drones. Although the Part 107 regulations provide clarity to drone commercial use, the regulations only pertain to drones weighing 55 pounds or less. In contrast, the passenger-carrying drones far surpass a weight of 55 pounds. Moreover, 55 pounds and heavier drone operations cannot be waived via a certificate of waiver under Part 107 regulations. § 107.205. So, until the FAA provides additional regulations for heavier drones, those companies must traverse the usual legal channels such as registering their aircraft under 14 C.F.R. Part 47 or proving aircraft worthiness.

Also, Part 107 established a flight restriction of no more than 400 feet above ground or 400 feet above the uppermost point of any structure.  Passenger-carrying drones have not yet been tested, therefore, the altitude requirements necessary for flight at optimal conditions for these drones is unknown.

Flying taxi

Part 107 also addresses licensing for drone operators, which are now called “remote pilots.” Currently, it is unnecessary for a person “manipulating the flight controls” of a drone to have authorization to operate one, so long as the remote pilot in command (RPC) is directly supervising that person and the RPC has the ability to immediately take direct control of the flight of the drone. § 107.12. But if the drone is self-automated, then who needs the authorization as the “remote pilot” to operate the drone?  Would the passenger in the drone need to obtain a remote pilot authorization? If so, how would the FAA implement this type of authorization program?

Additionally, the FAA will need to reconsider 49 U.S.C. §  41713(b) of The Airline Deregulation Act of 1978, which preempts states from enacting and enforcing laws regarding “price, route, or service of an air carrier that may provide air transportation…” Under the current law, the federal government would have to regulate air transportation in each locality where passenger-carrying drones would fly. This would create a massive task for the federal government to mandate transportation in every locality with the clearance to operate these types of drones. This creates a scenario in which state law might be better suited to handle the intricacies of local transportation regulations for transportation that occurs entirely within that state. The federal government will be forced to address the issue of preemption concerning local flight rules if passenger-carrying drones become a reality.

Notwithstanding Part 107 regulation questions or The Airline Deregulation Act of 1978, there are still privacy issues and looming safety concerns regarding drones in general. Thus, while the idea of passenger-carrying drones sounds enticing, we will have to wait for the outcome of testing results, technological advances, legislation, and even possible litigation before passenger-carrying drones are cleared for take-off.


Lynnel Reyes is a summer associate in the firm’s Las Vegas office.

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In 2012, Congress approved the FAA Modernization and Reform Act (FMRA) requiring the FAA to integrate drones into the National Airspace System (NAS). To that end, the FMRA specifically directed the FAA to issue proposed rules to fully regulate commercial drones and have the rules finalized by September 30, 2015. Hence, the FAA published a Small UAS Notice of Proposed Rulemaking (NPRM)—or Part 107—in early 2015. In a previous article, we discussed these proposed rules. The September 30, 2015, deadline came and went without any word from the FAA regarding final rules…until now.

Yesterday the FAA released its final Part 107 regulations, allowing the operation of commercial drones in the NAS. A comprehensive analysis of these regulations is forthcoming, but in the meantime, here are some notable highlights of Part 107:

Operational Limitations:

  • Drones are restricted from flying higher than 400 feet above ground level, unless the drone: (1) is flown within a 400-foot radius of a structure, and (2) does not fly higher than 400 feet above the structure’s immediate uppermost limit.
  • These rules will go into effect on August 29, 2016, and do not apply to hobby or recreational drones.

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Remote Pilot Requirements:

  • Prior to the final Part 107 regulations, in order to operate a commercial drone with a Section 333 Exemption, the drone operator was required to have an airline transport, commercial, private, recreational, or sport pilot license (also known as Part 61 certificate holders). Under Part 107 regulations, Part 61 certificate holders (other than student pilots) may still operate a commercial drone as long as they pass an online training course and have completed a flight review in the last 24 months. The Rules also provide an alternative mechanism for commercial drone operators, referred to as a “remote pilot” in Part 107. To obtain a remote pilot certificate, the applicant—minimum age is 16 years old—must “pass an initial aeronautical test” and complete an application through the FAA. Both those who qualify under Part 61 as well as those who pass the initial aeronautical test under Part 107 must be vetted by the Transportation Security Administration.
  • Remote Pilots cannot fly solely pursuant to Part 107 rules under certain circumstances: beyond visual line of sight operations, night operations, drones weighing 55 pounds or more, operating higher than 400 feet (except near structures as noted above), reaching speeds faster than 100 MPH, and operating over persons. A remote pilot would need a standard Certificate of Waiver or Authorization, a special Section 333 Exemption, or a combination of a Special Airworthiness Certificate and Certificate of Authorization.
  • Section 333 Exemption holders may still operate a drone pursuant to the terms of their authorized exemption despite the new regulations.

You can read the full text and summary sheet of the regulations here.

The regulations provide commercial drone operators some clarity about the commercial use of their drones. Moreover, the regulations also remove the requirement of obtaining a Section 333 exemption for commercial drone operations as long as the operation complies with Part 107. Stay tuned for updates.

Lynnel Reyes, a summer associate in the firm’s Las Vegas office, also contributed to this post.

 

Fox

On May 24, 2016, we published an article discussing the National Telecommunications and Information Administration (“NTIA”) issuance of Best Practices for privacy and other issues surrounding drone use. Attached as an Appendix to those Best Practices is a list of guidelines for neighborly drone use intended to be a quick and easy reference guide for recreational drone operators. It goes without saying that for recreational users it is worth reviewing, and is reproduced in its entirety below:

Drones are useful. New, fairly cheap drones are easy to use. But just because they are cheap and simple to fly doesn’t mean the pictures and video they take can’t harm other people. The FAA and partner organizations have put safety guidance online at http://knowbeforeyoufly.org. But even safe flight might not respect other people’s privacy. These are voluntary guidelines. No one is forcing you to obey them. Privacy is hard to define, but it is important. There is a balance between your rights as a drone user and other people’s rights to privacy. That balance isn’t easy to find. You should follow the detailed “UAS Privacy Best Practices”, on which these guidelines are based, especially if you fly drones often, or use them commercially. The overarching principle should be peaceful issue resolution.
  1. If you can, tell other people you’ll be taking pictures or video of them before you do.
  2. If you think someone has a reasonable expectation of privacy, don’t violate that privacy by taking pictures, video, or otherwise gathering sensitive data, unless you’ve got a very good reason.
  3. Don’t fly over other people’s private property without permission if you can easily avoid doing so.
  4. Don’t gather personal data for no reason, and don’t keep it for longer than you think you have to.
  5. If you keep sensitive data about other people, secure it against loss or theft.
  6. If someone asks you to delete personal data about him or her that you’ve gathered, do so, unless you’ve got a good reason not to.
  7. If anyone raises privacy, security, or safety concerns with you, try and listen to what they have to say, as long as they’re polite and reasonable about it.
  8. Don’t harass people with your drone.