Association for Unmanned Vehicle Systems International (AUVSI)

While drones have been used to capture breathtaking and heartbreaking images of Hurricane Harvey and its aftermath,  the FAA has issued a warning to drone operators.

The FAA has issued reminders that unless drone operators have specific authorization from the FAA, they are not permitted to operate where Temporary Flight Restrictions (“TFR”) are in place.  The primary reason is that operating an unauthorized drone in these areas could interfere with local, state, and federal rescue missions.

The FAA notes that if a drone operator interferes with emergency response operations, they could be subject to significant fines. In addition, even in areas where TFRs are not in effect, operating a drone without authorization in or near a disaster area  may violate federal, state, or local law.

Even in the absence of a natural disaster, operating a drone over people is prohibited by Part 107, unless a specific exemption has been granted by the FAA. Moreover, reckless operation of a drone is also prohibited.

While drones have incredible abilities to assist first responders and others, whether through providing real-time images and data that would be difficult or impossible to obtain through other means, unauthorized drone operations also have the potential to interfere with the efforts of first responders.

As tempting as it may be to fly a drone in or near a disaster area to capture footage, for the safety of all, please refrain from doing so unless you have specific authorization from the FAA.

The focus of this blog has been legal and policy issues regarding the civilian operation of drones. However, it is easy to forget that just a few short years ago, if you asked the person on the street the first thing to come mind if they heard the word “drone”, the vast majority would have responded “military”or some variant thereof.

Military usage of drones has increased (and will continue to), but due to the fact that civilian application of drone technology has increased greatly, more and more people envision civilian applications of drones when the term is mentioned.

Military use of drone technology raises unique issues.  The moral and ethical concerns of utilizing autonomous systems for military purposes was recently the subject of an article in NATO Review Magazine.

The term “autonomous” is often used rather loosely and is routinely used to describe what is more accurately described as “remotely operated” or “remotely piloted”.  Truly autonomous drones are “advanced drones programmed with algorithms for countless human-defined courses of action to meet emerging challenges”. In other words, artificial intelligence.

As the authors note, while the general rules of the Law of Armed Conflict will apply, autonomous drones may potentially be operating their weapon systems during an attack without any human involvement.  As the article notes, the law requires a reasonable commander acting in good faith to make certain discretionary decisions in the heat of the moment.

Among the concerns noted is whether we as a society are prepared to delegate life-and-death decisions to a nonhuman system. However, while magnified when used for military applications, many of the moral and ethical concerns apply to civilian usage as well. For example, what collision avoidance systems will be employed in autonomous vehicles and how will the system decide between various alternative course of action, each of which may cause injury or death to humans?

Moral and ethical concerns surrounding the implementation of artificial intelligence are not limited to the military, but will become more and more of an issue for society as artificial intelligence technology continues to develop. The legal and ethical issues raised by technology, particularly in the area of artificial intelligence, will intensify as we move forward as a society.

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.

Shaken and disoriented, the young student dragged himself down a dark and empty alley in a slum of Mumbai. As warm blood trickled down his forehead into his eyes, momentarily blinding him, a voice in his head screamed “why didn’t I just hand over the stupid money…he had a knife!” As his hunched over shape materialized from the darkness of the alley, curious bystanders gathered around as he collapsed from his many gaping wounds.

Quietly hovering above the closed set and crowd of extras, a drone captured the action on film using a high quality Red One camera for an episode of Criminal Minds. As filmmakers use drones more regularly on set, they are changing the way that movies and television shows are made.

The dynamic ability of drones provides directors and cinematographers with a myriad of unique opportunities. Drones are becoming popular tools for the film industry because they allow filmmakers to create more distinctive shots quicker, safer, and cheaper.  With their ability to go where people and manned aircraft simply cannot, drones allow filmmakers to capture previously unattainable images such as overhead imagery from perspectives too low for a manned helicopter and too high for a crane.

As drone technology evolves and high definition cameras become more durable and compact, formerly difficult, expensive, and dangerous shots will become easier and more viable to obtain. This will ultimately open up new cinematic possibilities that will push innovative and creative boundaries in the industry.

The dynamic filmmaking ability and cost effectiveness of drones on TV and film sets has allowed filmmakers to minimize the use of manned helicopters, both reducing hazards and costs. Although less than 10% of all film productions currently use drones, aerial cinematography companies using drones typically cost Hollywood studios $4,500 to $8,000 a day, compared with $15,000 to $25,000 for a helicopter shoot.

While drone use in cinematography may reduce flight risk and costs, it is not without limitations. Image quality and stabilization continue to present technical challenges. Additionally, with a limited battery life, drones carrying heavy high definition movie cameras do not allow for long shoots. Furthermore, when it comes to filming high-speed action scenes, helicopters are often preferable to drones. However, as drone technology continues to improve, the future of drone filmmaking is limited only by imagination.

The FAA has jurisdiction over the use of drones for commercial purposes. Therefore, using a drone for filming without specific FAA approval violates current FAA regulations. Although the current legal and regulatory framework in the U.S. is murky, the FAA intends to issue final regulations governing commercial drones sometime this year.

Until those new regulations are issued, here are some current basic guidelines for closed set motion picture and television drone filming:

  1. Drones are not permitted to fly within 5 miles of an airport, unless written permission is obtained.
  2. The drone must weigh less than 55 pounds, including energy source(s) and equipment.
  3. The drone may not be flown at a ground speed exceeding 87 knots (100 MPH).
  4. Flights must be operated at an altitude of no more than 400 feet above ground level (AGL).
  5. The drone must be operated within visual line of sight of the drone operator at all times. All operations must utilize a visual observer.
  6. The drone operator must possess at least a private pilot certificate.
  7. The drone must remain clear and yield the right of way to all other manned operations and activities at all times.
  8. Drone operations may not be conducted during night.
  9. The drone may not be operated from any moving device or vehicle, i.e., operator must operate from a stationary position.
  10. The drone may not be operated directly over any person, except authorized and consenting production personnel essential to the close-set film operations, below an altitude that is hazardous to persons or property on the surface in the event of a drone failure or emergency.
  11. The operator must ensure that no non-participating persons and vehicles are allowed within 500 feet of the area except those consenting to be involved and necessary for the filming production. This provision may be reduced to no less than 200 feet if it would not adversely affect safety and the FAA has approved it.

If you intend to use drones for commercial filming, it is critical that you verify the drone operator you engage is authorized by the FAA and any applicable state law to operate drones. It is also up to you “to verify that such authorization is for the purpose for which you engage the drone operator.” This is an important detail because while operators may be granted an exemption to operate drones for “aerial cinematography,” there are also exemptions for other purposes not related to filming, such as aerial surveillance of pipelines, crops, and real estate.

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In addition to authenticating that the drone operator has proper credentials, it is important to verify if other permits, exceptions, or permissions are needed for your specific use as mandated by the FAA or other applicable law.

It is also important to note that “just because a company has been granted an (via Section 333) exemption, that does not necessarily mean it can legally fly a drone for commercial filming purposes.” Again, it is up to you to make sure that the drone operator you engage lawfully may provide the service. Before becoming involved in drone cinematography, either on your own or through the use of another company, it is important that you consult legal counsel knowledgeable in the area of drone law.

Bewildered and fatigued, he lay there underneath the extirpated munitions shed. The mound of rubble around him blackened and scarred, swirled with smoke. The blast from the RPG had rattled him, but as he struggled to gain his composure, he was greeted with a heightened sense of his surroundings and an uncanny calmness. A cool breeze kissed his face as grains of sand tumbled over him. The air carried the cacophonous bellows of artillery shells from far away, but it was the bantering of footsteps over loose, crumbling, gravel that created a sense of terror. Through the cracks in the debris, the enemy could be seen plodding through the wreckage, searching for weapons and survivors. Clutched to his chest, a grenade was held tightly with the pin half drawn out. As he closed his eyes, he took a deep breath and began to pray.

The hero described above is the recipient of the Purple Heart and to this day still performs his duty as an officer in the U.S. Army. Getta’s story is one of courage, inspiration, and hope. The compromising position that Getta was forced into was due to a lack of knowledge as to where the enemy encampment was located.

The integration of drone technology into the theater of war has enabled the US military to conduct ISR (intelligence, surveillance, and reconnaissance) missions and strike capabilities from afar, providing information superiority and real-time situational knowledge without putting service men and women in harm’s way. As drone technology has evolved and has exhibited its military usefulness, the potential for domestic use remains largely unexplored.

With its untapped potential, drone technology has expanded beyond military applications and is now being primed for commercial and recreational use. As the technology continues to become cheaper and more accessible, the insatiable call for drone technology has increased and has led to the demand for drone operators, engineers, and ground station personnel. Several studies have shown that the integration of drone technology into U.S. airspace could create more than 100,000 high-paying jobs and provide more than $82 billion to the nation’s economy over the next decade.

Drone Operator and Engineer

In the private sector, Northrop Grumman, Lockheed Martin, and Boeing are offering drone operators and engineers annual salaries in excess of $100,000 and Amazon is ready to use drones to deliver packages straight to consumer’s homes. Anticipating the commercial demand for drone training, educational institutions around the country are “offering degrees and certificates on piloting, engineering, and repairing drones.”

While the demand for commercial use of drone technology remains high, the lack of regulatory guidance has inhibited its explosive potential. However, it is anticipated that the FAA will release regulations later this year that will allow for much broader commercial use. As operational guidance and regulations are put in place, operators using drones for commercial purposes will likely be required by the FAA to obtain certification of training or competence.

Classicaviationgirl (2)

As the laws and regulations related to commercial drone use gain clarity, the demand for drone technology and those who operate them will experience growth. Despite the presence and guidance of Amelia Earhart, Rosie the Riveter, and other females, aviation has historically been a male dominated field. Fortunately, as society has progressed, females have become more involved in aviation. The next generation of “flyboys” and “flygirls” are here to stay.

As the popularity of drone use continues to increase, it directly impacts the privacy and safety of those at the ground level. In a recent case, Boggs v. Merideth, a drone operator sued his neighbor for shooting down his drone. As a result, several issues pertaining to the boundaries of “navigable airspace” and how that airspace interacts with the state property rights of landowners may be clarified.

The federal government has exclusive sovereignty of U.S. airspace. Congress delegated to the FAA the ability to define “navigable airspace” and the authority to regulate “navigable airspace” of aircraft by regulation or order. 49 U.S.C. § 40103(b)(1). While it is clear that navigable airspace falls under the purview of the FAA, the boundaries of that airspace remain unclear.

According to Federal Aviation Regulations, “navigable airspace” is defined as “airspace at and above the minimum flight altitudes prescribed by or under this chapter, including airspace needed for safe takeoff and landing.” 14 C.F.R. § 1.1. For airplanes, the minimum flight altitude while flying over congested areas or open air assemblies of persons is 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet. 14 C.F.R. § 91.119(b).

Drone Laws

Over uncongested areas, airplanes can operate at an altitude of 500 feet above the surface. However, airplanes can operate even lower when over “open water or sparsely populated areas.” When flying over those areas, aircraft may not operate closer than 500 feet to any person, vehicle, or structure provided that if the airplane’s engines fail, an emergency landing will not create an undue hazard. 14 C.F.R. § 91.119(a) and (c). Two exceptions exist for when a person may operate an aircraft below these altitudes: (1) when necessary for takeoff or landing; or (2) in an in-flight emergency requiring immediate action. 14 C.F.R. § 91.119(a)14 C.F.R. § 91.3(b)[1]

In United States v. Causby, the Supreme Court of the United States in 1946 provided guidance on where private property rights of airspace end and navigable airspace begins. In Causby, a farmer lived adjacent to a military airport where aircraft flew as low as 83 feet over the farmer’s property. As a result, the noise from the aircraft startled the farmer’s chickens, causing them to kill themselves by flying into walls.

Causby

Since the navigable airspace which Congress had placed in the public domain was airspace above what was deemed the minimum safe altitude (“MSA”), the Supreme Court reasoned that airspace above the MSA was immune from suits against the government for a takings violation.

The Causby Court put forth two key principles regarding airspace below the MSA. First, landowners have “exclusive control of the immediate reaches of the enveloping atmosphere.” Second, landowners own at least as much of the space above the ground as they can occupy or use in connection with the land.

While it appears that the lowest “navigable airspace” could descend to is just over the Causby limits, the circumstances of the case may limit its applicability. Causby took place during World War II. It involved large military aircraft flying 83 feet above the farmer’s property. The unsettling noise resulted in the destruction of the use of the property as a commercial chicken farm and caused the farmer’s family severe anxiety from the lack of sleep. In contrast, drones are typically not noisy or earsplitting, and often fly well below 83 feet. Further, drone technology did not exist when Causby was decided 70 years ago.

The Court ruled in favor of the farmer. However, several questions linger including “where the precise boundaries of public airspace above the farm meet the immediate reaches of the farmer’s property” and how high state government’s rights extend. [2]

In other words, would the Court in Causby have ruled in favor of the farmer if the aircraft at issue operated above 90 feet or perhaps 150 feet? The Causby decision does not clarify what happens between 83 feet and 500 feet. Moreover, it is unclear if the Court would have found a taking if the property was vacant and the aircraft caused no damage to the farmer or his property.

The FAA has divided airspace into different categories based on altitude. Class G airspace is defined from the Causby limits to 500 feet and is considered uncontrolled airspace. This begs the question, does “navigable airspace” include class G airspace and if not, does the FAA have the authority to regulate the airspace below?

The FAA argues that it “has authority to regulate aircraft in U.S. Airspace” at any altitude because Federal law states that the FAA “shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. 49 U.S.C. § 40103(b)(1).

Furthermore, it could be argued that the FAA can regulate airspace below 500 feet despite jurisdictional limitations because another federal law gives the FAA the authority to prescribe “regulations and minimum standards for other practices, methods and procedure the [FAA] finds necessary for safety in air commerce and national security.” 49 U.S.C. § 44701(a). Under this section, the FAA regulates amateur rockets, motorized paragliders, and other vehicles below 500 feet.

Even if navigable airspace does not extend to the surface, the FAA has argued that it may regulate below navigable airspace because it can prescribe regulations “on the flight of aircraft for navigating, protecting, and identifying aircraft” and “protecting individuals and property on the ground.” 49 U.S.C. § 40103(b)(2).

As a result of increased drone technology and use, it could be that “navigable airspace” extends to the surface. At the moment, the area below “navigable airspace” is a gray jurisdictional area for the FAA to attempt to regulate and states continue to argue that they should be able to regulate flight below 500 feet through their traditional police powers. Boggs v. Merideth may provide answers to whether a drone flying below 500 feet is operating in “navigable airspace.”

As the case progresses, we will continue to monitor and provide updates of any developments.


[1] Minimum safe altitudes for helicopters differ from other aircraft. Specifically, “If the operation is conducted without hazard to persons or property on the surface . . . . A helicopter may be operated at less than the minimums prescribed [for fixed wing aircraft], provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA.” 14 C.F.R. § 91.119(d)(1).

[2] Jonathan Rupprecht, Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them, at 24-25, (Version 2.03) (2015).

One hundred and sixty-eight bills restricting drones were passed in forty-five states in 2015. Whether these bills have or will be preempted by FAA laws and regulations is an emerging issue. In Part I, we discussed the constitutional concept of preemption and how courts determine when it applies. In this discussion, we will apply those principles to an actual state law.

Early last year, the Nevada legislature passed Assembly Bill (“AB”) 239, which has numerous provisions regulating the operators of drones. Section 18 of the bill states “A person shall not weaponize an unmanned aerial vehicle or operate a weaponized unmanned aerial vehicle.” Is it subject to preemption?

In a report released December 17, 2015, the FAA specifically noted examples of laws within the states’ police power and not subject to federal regulation, which include prohibitions on attaching weapons to drones. Therefore, Section 18 may not be subject to preemption.

Weaponized Drone
Copyright: mipan / 123RF Stock Photo

On the other hand, Section 18 is susceptible to field preemption under the subfield of aviation safety because its purpose demonstrates a concern for the safety of citizens and property. The FAA has the sole responsibility “to regulate navigable airspace to ensure its safe use.” Furthermore, the second part of the statute states “A person shall not…operate a weaponized unmanned aerial vehicle.” That part, as opposed to the first portion of the statute which simply prohibits weaponizing drones, seems to regulate or at the very least affect the operation of the drone itself which is the responsibility of the FAA. As a result, Section 18 may not survive a challenge.

From a practical perspective however, that section may never be challenged as it does not conflict with federal law. If the statute authorized the converse, i.e., permitted drone operators to weaponize drones, then it would certainly be preempted.

Also vulnerable to preemption is Section 18.5 of AB 239. It states, “A person shall not operate an unmanned aerial vehicle within: (a) A horizontal distance of 500 feet or a vertical distance of 250 feet from a critical facility without the written consent of the owner of the critical facility.” This is arguably an operational ban and directly restricts drone operation, flight altitude, and flight paths. More importantly, a court would likely characterize the law as a regulation of safety which is a subfield within aviation that seems to have been absorbed by federal law and regulations. Therefore, it would likely be preempted.

Section 19 of AB 239 allows property owners to sue drone operators for trespass if, (1) a drone has flown at a height of less than 250 feet above the owner’s property at least once; (2) the property owner has told the drone operator that he/she does not consent to the drone flying over his/her property; and (3) the drone operator then flies the drone less than 250 feet above the property again.

However, a person cannot sue for trespass under Section 19 if, (1) the drone is lawfully in the flight path for landing at an airport, airfield, or runway; (2) the drone is taking off or landing; or (3) the drone operator is licensed to operate the drone by the FAA and the drone does not unreasonably interfere with the existing use of the real property.

Section 19 concerns privacy and trespass, and falls within state police powers not generally subject to FAA regulation. Additionally, any threat of preemption may be mitigated by the exceptions which allow FAA integration of drones into U.S. airspace while addressing the concerns of unlawful trespass and surveillance.

On the other hand, Section 19 directly addresses drone flight. As previously discussed, the FAA considers any operational drone restrictions on flight altitude, flight paths, or navigable airspace by states to be an encroachment on their authority. As a result, state regulation of overflight will be rigorously scrutinized by federal courts, increasing the likelihood of preemption.

From a policy standpoint, the FAA argues that substantial air safety issues are raised when state governments attempt to regulate the operation or flight of aircraft. If multiple states pass different laws regulating navigable airspace, fractionalized control of the navigable airspace could result. From the FAA’s perspective, a navigable airspace free from inconsistent state restrictions is necessary to the maintenance of a safe air transportation system.

As noted by President and CEO of the Association for Unmanned Vehicle Systems International (AUVSI) Brian Wynne, legislation recently proposed at the state level may conflict with federal jurisdiction resulting in “a complicated patchwork of laws and ordinances” causing confusion about where commercial UAS operators could fly.

While certain provisions of AB 239 as well as laws enacted by various other states are susceptible to preemption, until challenged and litigated in court (or repealed by the legislature), there will continue to be legal ambiguity. What is clear is that the breadth and pervasiveness of the forthcoming Federal drone regulations will greatly influence the degree and scope of preemption.

The surge in drone technology has the potential to bring added business and jobs to states that welcome this burgeoning new industry. State lawmakers must exercise caution in enacting laws affecting drones so as to not alienate the drone industry by passing reactionary, burdensome, and restrictive legislation that will prevent new businesses and jobs from being created.

In Star Wars: Episode I - The Phantom Menace, a wise Jedi famously noted "fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to suffering."
“Fear is the path to the dark side.” Yoda, Star Wars: Episode I – The Phantom Menace. (Image Copyright: alantunnicliffe / 123RF Stock Photo)

Instead, state lawmakers need to strike a balance that allows the use of drones for commercial and recreational use while addressing citizen concerns. Those concerns should be addressed through a cautious and thoughtful approach and consideration before enacting laws that affect drone operations as courts will examine the text of the statutes involved, as well as the purposes and concerns addressed by the statute.

In 2012 Congress passed the FAA Modernization and Reform Act requiring the FAA to integrate drones into U.S. national airspace. As drones have evolved from ISR (intelligence, surveillance, and reconnaissance) platforms to weaponized aerial vehicles, public concerns about domestic drone use have increased.

To preserve the rights of its citizens, many states have passed laws that regulate or prohibit the flight, weaponization, and surveillance use of drones. However, those laws may be encroaching on the sovereignty of the federal government.

Drones in NY

The idea that federal law is “superior” to state law (i.e. preemption) is rooted in the Constitution and states that the “laws of the United States…shall be the supreme law of the land.” Therefore, when a court determines that federal law was intended to preempt state law, the state law is void. Congressional intent to preempt state law consists of two kinds: express and implied preemption.

Express preemption occurs when Congress has explicitly stated that state law will be preempted by the enactment of federal law or regulation. With regards to aviation, two instances of express preemption exist: (1) Congress has expressly asserted “exclusive sovereignty of airspace of the United States,” and has placed “exclusive authority for regulating the airspace above the United States with the [FAA]” and (2) Under the Airline Deregulation Act of 1978, Congress prohibited states from enacting laws “related to a price, route, or service of an air carrier that may provide air transportation.”

Despite the instances of express preemption stated above, the U.S. Supreme Court has held that there is no general express preemption in the field of aviation. Instead, courts may infer intent either through a conflict between a federal law and a state law or by finding that Congress has taken up the “field.”

Under implied field preemption, intent to preempt a state law is typically determined on a case-by-case basis when the federal laws and regulations are “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Although the breadth of laws and regulations in the aviation field are extensive, courts have consistently held that there is room for state laws within aviation subfields.

However, any attempt by states to regulate certain subfields within aviation, including airspace, noise control, and safety, will be deemed preempted. Furthermore, any regulations touching or affecting drone operations in any way, including regulations on flight altitude, flight paths, operational bans, or navigable airspace, could potentially be preempted. For example, a state law banning anyone from operating a drone within certain distances of landmarks will likely be preempted.

Drone Regulations

On the other hand, if the state law regulates a traditional state power generally not subject to or addressed by federal regulation, including land use, zoning, privacy or trespass, the state law may survive. Notable examples include state laws prohibiting the weaponization of drones and the use of drones for voyeurism.

As the FAA finalizes regulations for commercial drone use and has required the registration of recreational drones, many states have begun exploring state regulations. Whether those state laws will be preempted by FAA laws and regulations is an emerging topic. In the next post, we will apply the principles discussed here to actual state laws to determine whether preemption would apply.

It was just past noon on a clear February day as Delta Air Lines Flight 1159 descended to 3,000 feet on final approach to Los Angeles International Airport. The first officer was about to radio air traffic control for landing instructions when an unidentified object slightly ahead of the Boeing 757 jet caught his eye.

“At first I thought it was a large bird soaring towards us,” the first officer wrote in a report following the incident. But as it passed outside of the right window, “I very clearly saw a large square-shaped bright red drone with black accents and black propellers.” The first officer had it in sight for a few seconds as it flew by in the opposite direction approximately 150 feet away from them.

To be sure, no drone has ever collided with a manned aircraft. But with close encounters becoming more commonplace, many are asking “why these incidents are occurring and what can be done to prevent a potentially catastrophic accident?”

Drone Collission With Airplane

To help answer those questions, Bard College’s Center for the Study of the Drone recently released a study. The study analyzed records of 921 incidents involving drones and manned aircraft in U.S. national airspace over the past two years. In the report, a variety of factors were analyzed including altitude, distance from airports, drone-to-aircraft proximity, manned aircraft type, drone type, and time of day.

The incidents were divided into two categories. “Close encounters” were defined as incidents where a drone came close enough to a manned aircraft that it met the FAA’s definition of a “near midair collision” or close enough that there was a possible danger of collision. On the other hand, “sightings” were defined as when a drone was spotted above its legal ceiling or in the vicinity of an airport or aircraft, but did not pose a clear potential for a collision.

Of the 921 total incidents, 327 were categorized close encounters and 594 were categorized sightings. Over 90 percent of the incidents occurred above 400 feet, the maximum altitude that the FAA allows drones to fly. Even more striking, a majority of the total incidents occurred within 5 miles of an airport (which is prohibited airspace for all drones regardless of the altitude at which they are flying). These alarming stats raise questions about the effectiveness of the FAA rules and more fundamentally, its ability to enforce those rules.

Other notable findings include 158 incidents in which a drone came within 200 feet of a manned aircraft and 51 incidents in which the proximity was 50 feet or less. Furthermore, pilots had to maneuver to avoid a collision with a drone 28 times. While 90 of the drone close encounters involved commercial aircraft, 38 close encounters involved helicopters.

Solutions to prevent future incidents involving drones are already being developed. Sense-and-avoid systems and mandatory registration requirements were discussed in our earlier articles. Geo-fencing, on the other hand, is a system that uses software to limit where drones can fly such as restricting the users’ ability to fly within 5 miles of an airport.

Drone Geo Fencing

In addition, NASA is developing a UAS Traffic Management System which uses conflict avoidance software. After being integrated into air-traffic control systems, NASA’s system could prevent collisions by alerting and re-routing drones.

With the skyrocketing popularity of drones among consumer and commercial users, regulators and policymakers are struggling with how to reap the benefits of UAS technology without undermining safety.

The Bard report provides lawmakers with a greater understanding of close encounters and sightings involving drones and manned aircraft, including the areas of greatest risk and how an accident might occur. More importantly, it highlights ways for making the airspace safer for everyone.

As more drones enter U.S. airspace, a combination of approaches will be needed to prevent incidents that could potentially pose a threat to public safety. Lawmakers and industry regulators should use the information from the report to develop strategies and solutions to address the growing number of potentially dangerous incidents between manned and unmanned aircraft.