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.
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.