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.

19666995 - rubber stamps marked with regulations and rules

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.

 

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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.

Drones are a uniquely transformative technology in the commercial and private sectors. Indeed, greater operational flexibility, lower capital requirements, and lower operating costs allow drones to enrich people’s daily lives by providing innovative services, safer infrastructure, recreational uses, and greater economic activity. The assimilation of this technology into everyday life, however, raises concerns for privacy, civil rights, and civil liberties.

In recent years drone popularity has soared. According to the FAA there are about 5,600 drones registered for commercial purposes and roughly 450,000 hobbyists who have registered at least one drone. This popularity has put pressure on the drone industry and privacy advocates to reach agreement on guidelines governing drone use.

Seeking to promote the responsible use of drone technology in a way that does not diminish rights and freedoms, President Obama, on February 15, 2015, issued the Presidential Memorandum, “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems.”

That memo 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 in the National Airspace System. And so, on May 18, 2016, the stakeholders came to consensus and issued a document on Best Practices for privacy and other issues surrounding drone use.[1]

Best Practices

The purpose of that document was to outline and describe voluntary Best Practices that drone operators could take to advance drone privacy, transparency, and accountability for the private and commercial use of drones. These Best Practices may be implemented by drone operators in a variety of ways depending on their circumstances and technology uses, and evolving privacy expectations. Yet these Best Practices do not—and are not meant to—create a legal standard of care by which the activities of any particular drone operator should be judged. Nor are the Best Practices intended to serve as a template for future statutory or regulatory obligations—doing so would make these standards mandatory (not voluntary) and could therefore raise First Amendment concerns.

At its core, the Best Practices call for drone users to notify other individuals of drone use and data collecting activities; practice caution when it comes to collecting and storing the data of specific individuals; restrict use and sharing of that data; implement measures to ensure security of covered data[2]; and comply with laws on the use of drones.

These Best Practices focus on data collected via drones, which includes both commercial and non-commercial drones; they do not apply to news gatherers and news reporting organizations or to safety and rescue missions and other emergency response efforts.

In any event, here are the Best Practices in their entirety:

  1. Inform Others of Your Use of Drones
  • (a) Where practicable, drone operators should make a reasonable effort—what qualifies as a practicable and reasonable effort to provide prior notice will depend on operators’ circumstances and the context of the drone operation—to provide prior notice to individuals of the general timeframe and area that they may anticipate a drone intentionally collecting covered data.
  • (b) When a drone operator anticipates that drone use may result in collection of covered data, the operator should provide a privacy policy for such data appropriate to the size and complexity of the operator, or incorporate such a policy into an existing privacy policy. The privacy policy should be in place no later than the time of collection and made publicly available. The policy should include, as practicable:
    • (1) the purposes for which the drone will collect covered data;
    • (2) the kinds of covered data the drone will collect;
    • (3) information regarding any data retention and de-identification practices;
    • (4) examples of the types of any entities with whom covered data will be shared;
    • (5) information on how to submit privacy and security complaints or concerns; and
    • (6) information describing practices in responding to law enforcement requests.
  1. Show Care When Operating Drones or Collecting and Storing Covered Data
  • (a) In the absence of a compelling need to do otherwise, or consent of the data subjects,[3] drone operators should avoid using a drone for the specific purpose of intentionally collecting covered data where the operator knows the data subject has a reasonable expectation of privacy.
  • (b) In the absence of a compelling need to do otherwise, or consent of the data subjects, drone operators should avoid using a drone for the specific purpose of persistent and continuous collection of covered data about individuals.
  • (c) Where it will not impede the purpose for which the drone is used or conflict with FAA guidelines, drone operators should make a reasonable effort to minimize drone operations over or within private property without consent of the property owner or without appropriate legal authority.
  • (d) Drone operators should make a reasonable effort to avoid knowingly retaining covered data longer than reasonably necessary to fulfill a purpose as outlined in § 1(b). With the consent of the data subject, or in exceptional circumstances (such as legal disputes or safety incidents), such data may be held for a longer period.
  • (e) Drone operators should establish a process, appropriate to the size and complexity of the operator, for receiving privacy or security concerns, including requests to delete, de-identify, or obfuscate the data subject’s covered data. Commercial operators should make this process easily accessible to the public, such as by placing points of contact on a company website.

  1. Limit the Use and Sharing of Covered Data
  • (a) Drone operators should not use covered data for the following purposes without consent: employment eligibility, promotion, or retention; credit eligibility; or health care treatment eligibility other than when expressly permitted by and subject to the requirements of a sector-specific regulatory framework.
  • (b) Drone operators should make a reasonable effort to avoid using or sharing covered data for any purpose that is not included in the privacy policy covering drone data.
  • (c) If publicly disclosing covered data is not necessary to fulfill the purpose for which the drone is used, drone operators should avoid knowingly publicly disclosing data collected via drone until the operator has undertaken a reasonable effort to obfuscate or de-identify covered data —unless the data subjects provide consent to the disclosure.
  • (d) Drone operators should make a reasonable effort to avoid using or sharing covered data for marketing purposes unless the data subject provides consent to the use or disclosure. There is no restriction on the use or sharing of aggregated covered data as an input (e.g., statistical information) for broader marketing campaigns.
  1. Secure Covered Data
  • (a) Drone operators should take measures to manage security risks of covered data by implementing a program that contains reasonable administrative, technical, and physical safeguards appropriate to the operator’s size and complexity, the nature and scope of its activities, and the sensitivity of the covered data.
  • (b) Examples of appropriate administrative, technical, and physical safeguards include those described in guidance from the Federal Trade Commission, the National Institute of Standards and Technology Cybersecurity Framework, and the International Organization for Standardization’s 27001 standard for information security management.
  • (c) For example, drone operators engaging in commercial activity should consider taking the following actions to secure covered data:
    • Having a written security policy with respect to the collection, use, storage, and dissemination of covered data appropriate to the size and complexity of the operator and the sensitivity of the data collected and retained.
    • Making a reasonable effort to regularly monitor systems for breach and data security risks.
    • Making a reasonable effort to provide security training to employees with access to covered data.
    • Making a reasonable effort to permit only authorized individuals to access covered data.
  1. Monitor and Comply with Evolving Federal, State, and Local Drone Laws
  • Drone operators should ensure compliance with evolving applicable laws and regulations and drone operators’ own privacy and security policies through appropriate internal processes.

These Best Practices are at present voluntary, however, they may end up as rules that commercial and non-commercial drone operators will have to follow in the future. Indeed, the U.S. Senate has asked the NTIA for a set of privacy guidelines that could serve as the basis for further federal legislation. See FAA Reauthorization Act of 2016, Sec. 2101. With all the news stories about irresponsible individuals using drones for illegal activities or violating people’s privacy, the existence of these Best Practices could be legal fodder for anyone who wants to prosecute you or your company for drone activities. Do yourself or your company a favor, take the initiative and start applying these guidelines today.

Endnotes:

[1] The stakeholders that support this Best Practices document include: Amazon, AUVSI, Center for Democracy and Technology, Consumer Technology Association, CTIA, Future of Privacy Forum, New America’s Open Technology Institute, PrecisionHawk, X (Formerly Google [x]), Small UAV Coalition, Online Trust Association, News Media Coalition, Newspaper Association of America, National Association of Broadcasters, Radio Television Digital News Association, Digital Content Next, Software & Information Industry Association, NetChoice.

[2] “Covered data” means information collected by a drone that identifies a particular person. If data collected by a drone likely will not be linked to an individual’s name or other personally identifiable information, or if the data is altered so that a specific person is not recognizable, it is not covered data.

[3] The term “data subjects” refers to the individuals about whom covered data is collected.

Today, FAA Administrator Michael Huerta (“Huerta”) announced plans to make it easier for students to fly drones as part of their coursework. Huerta first recognized the uncertainty surrounding when a drone is a model aircraft operated for “hobby or recreation.” That uncertainty, Huerta noted, left a number of questions on the use of model aircraft by students and faculty in connection with participation in coursework at educational institutions.

As part of Huerta’s announcement, the FAA released an Interpretation Memorandum (“Memo”) that specifically addressed two key issues: (1) the use of drones for “hobby or recreational purposes” at educational institutions and community-sponsored events (e.g., demonstrations at schools, boy or girl scout meetings, science clubs, etc.) and (2) student and faculty use of drones in furtherance of receiving and providing instruction at educational institutions. Essentially, the FAA sought to clarify the applicability of Section 336 of the FAA Modernization and Reform Act of 2012 (“FMRA”) in the educational context.

Drone teacher

Hobbyist Use of Drones to Conduct Demonstrations

As a matter of background, Section 336(a) of the FMRA provides special rules for model aircraft. Those rules require, among other things, that the aircraft be: (1) flown strictly for hobby or recreational use; (2) limited to not more than 55 pounds and; (3) operated in accordance with a community-based standards of safety guidelines and within the programming of a nationwide community-based organization. Importantly, for an operation to qualify as a “model aircraft” operation and be subject to Section 336 above, depends on whether the drone operation is for “hobby or recreational” purposes.

Accordingly, the FAA clarified that a person may operate a drone for “hobby or recreation” in accordance with Section 336 at educational institutions and community-sponsored events provided that the person is (1) not compensated, or (2) any compensation received is neither directly nor incidentally related to that person’s operation of the aircraft at such events.

In substance, the FAA interpreted “hobby or recreational” use to include operation of drones to conduct demonstrations at accredited educational institutions or at other community-sponsored events subject to the above requirements being met. This is important because now a model aircraft hobbyist or enthusiast lawfully may fly drones at such institutions or events to promote the use of drones and encourage student interest in aviation as a hobby or for recreational purposes.

Student Operation of Model Aircraft for Educational Purposes

Next, the FAA considered whether a student’s course work of learning how to operate and use a drone constitutes a hobby or recreational activity within the meaning of Section 336’s definition of model aircraft. The FAA found that “the use of [drones] by students at accredited educational institutions as a component of science, technology and aviation-related educational curricula or other coursework such as television and film production or the arts more closely reflects and embodies the purposes of “hobby or recreational” use of model aircraft and is consistent with the intent of Section 336.”

Therefore, the FAA concluded that student use of drones at such institutions as a component of their educational curricula, or other coursework, is “hobby or recreational use” within the meaning of the FMRA. Note that the student still must comply with all other elements required for lawful model aircraft operations pursuant to Section 336, that is, not receiving any form of compensation directly or incidentally to his or her operation of the model aircraft.

Faculty Use of Model Aircraft

Respecting faculty, the FAA found that because a faculty member engaging in the operation of a drone is being compensated for his or her teaching or research activity, they would not be engaging in a “hobby or recreational activity.” Accordingly, the faculty member may not rely on Section 336’s concept of “hobby or recreational use” to either operate a drone or direct student drone operations in connection with such research.

Nevertheless, the FAA found that a faculty member teaching a course that uses drones as a component of that course may provide limited assistance (e.g., the faculty member steps-in to regain control in the event the student begins to lose control, to terminate the flight, etc.) to students operating drones as part of that course without changing the character of the student’s operation as a hobby or recreational activity or requiring FAA authorization for the faculty member to operate.

This “de minimis” limited instructor participation would apply to courses at educational institutions where the operation of the drone is secondary to the design and construction of the aircraft, such that the primary purpose of the course is not operating a drone. The FAA illustrates this limited circumstance with two examples.

The first example involves an instructor teaching an engineering course in which construction and operation of drones are one part of the curriculum. In this scenario, the instructor would be able to conduct limited drone operations as described above. Students would fly drones to test the validity of design or construction methods to show mastery of the principles of the course. But the faculty member’s drone operation would be secondary to the purpose of instructing engineering courses.

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Conversely, this limited circumstance would not apply to a course related to drone flight instruction. In this scenario, the student’s primary purpose for taking the course is to learn to fly a drone. Flight would be expected to be demonstrated on a regular basis. Indeed, the faculty member’s drone operation is closely tied to his or her purpose of instructing how to fly a drone. Similar to student operations, these faculty operations must also abide by the provisions of Section 336.

Students and faculty members who wish to operate drones outside of these parameters above must seek FAA authorization. Currently, there are three ways to lawfully conduct drone operations in the U.S.: (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 a Section 333 of the FMRA grant of exemption provided the operator obtains a COA from the FAA.

Schools and students will no longer need a Section 333 exemption or any other authorization to fly provided they follow the rules for model aircraft and operate within the parameters described above. Further, faculty will be able to use drones in connection with helping their students with certain types of courses as set forth above. Schools and universities are incubators for tomorrow’s great ideas. The FAA’s interpretation is going to be a significant shot in the arm for innovation.

This past month, a FAA committee tasked with providing recommendations on a regulatory framework for the classification and operation of micro unmanned aircraft systems (“UAS” or “drones”), submitted its official report to the FAA.

The Micro UAS Aviation Rulemaking Committee (“ARC”) was directed to develop “recommendations for a performance-based standard that would allow for micro UAS to be operated over people who are not directly participating in the operation of the UAS.” On April 6, the FAA accepted those recommendations. Moreover, the FAA has already started the process of developing a notice of proposed rulemaking based on the ARC’s recommendations.

Drone cartoon over people

While trying to balance the twin goals of ensuring safety and encouraging innovation, the ARC identified four small UAS categories defined primarily by level of risk of injury posed by operations over people. For each category, the ARC recommended a risk threshold that is based on either weight or an impact energy equivalent.

Category 1 includes small drones weighing .55 lbs (250 grams) or less, including accessories and payload (e.g., cameras). The ARC considers the level of risk of injury posed by this category of UAS to be very low. Consequently, the ARC recommended that no performance standards and no operational restrictions beyond those imposed by the proposed part 107 of Chapter 14 of the Code of Federal Regulations (“part 107”) are necessary.

Based on the risk that a UAS could strike a person on the ground causing serious injury, the standards and restrictions in categories 2, 3, and 4 are “scaled up” to mitigate the increased risks.

Category 2 includes drones that weigh more than .55 lbs (250 grams) but still present a 1% or less chance of serious injury to a person in the event of impact. Depending on its design characteristics and operating instructions, a 4 to 5 pound drone would qualify. On the other hand, category 3 and 4 drones would have a 30% or lower chance of causing a serious injury upon impact with a person.

The ARC recommended that category 2 drones must, among other things, be operated at a minimum distance of 20 feet above people’s heads, or 10 feet laterally away from people. Even with these minimum distance requirements, the small UAS must always maintain a safe distance from people so as not to create an “undue hazard” to those people.

striking a person

laying on ground

 

 

 

 

 

Under the ARC’s recommendations, category 3 operational restrictions “do not allow flight over crowds or dense gatherings of people.” But category 4 differs because it allows sustained flight over crowds or dense gatherings of people beyond what is permitted in category 3. Since an increased number of people on the ground may be subjected to overhead flight of longer duration, category 4 prescribes additional standards and restrictions for drone operations over people that present the same level of risk of serious injury as category 3 (i.e. 30% or less).

Accordingly, the ARC recommends that category 4 drones (1) require the drone operator to have a risk mitigation plan in place for conducting sustained operations over people and (2) take into account materials and components of the drones to determine if the materials pose additional potential risk of collateral serious injury to people on the ground, in addition to injury caused by initial impact.

In each case, extensive testing would be required to determine that the drone meets the weight or impact energy threshold for its category. Additionally, to demonstrate that a small UAS qualifies for categories 2, 3, or 4 operations over people, the manufacturer of the drone must: (1) declare that the small drone meets industry consensus standards applicable to the category; (2) submit that declaration to the FAA in a form and manner acceptable to the FAA; (3) label the product or product retail packaging in accordance with industry consensus standards;[1] and (4) provide an operating manual to the operator that includes operator instructions for flight over people. Lastly, drone operators would be responsible for knowing what category of operations his or her drone qualifies for, and what operational limitations he or she must follow.

The ARC’s recommendations illustrate an effort by drone manufacturers to put drones on the path to everyday commercial and recreational use in populated areas by lessening the operational restrictions and requirements set forth by the FAA in the proposed rules in part 107 announced in February, 2015. But hurdles remain, including creating tests to determine which drones meet the various thresholds of the performance standards. As noted above, the FAA will use the information in the ARC’s report to develop a flexible, performance-based proposed rule and the public will have the opportunity to comment.

flight in beach

It is difficult to predict how long it will take for the FAA to work out the details or how long before companies manufacture drones which meet the standards enumerated above. But what is clear is that this is progress and the application of the ARC’s recommendations would allow businesses to use drones for many commercial applications. Indeed, the FAA’s ban on flying drones over crowds or in towns and cities could soon be modified further.

[1] For category 1 operations over people, the ARC recommended that the manufacturer of the drone be required to: (1) label the retail product packaging of the small UAS with either the actual weight of the small unmanned aircraft or a general statement that the small UAS weighs .55 lbs (250 grams) or less; or (2) declare that the small unmanned aircraft weighs .55 lbs (250 grams) or less and submit that declaration to the FAA in a form and manner acceptable to the FAA.