Drone Regulations and Policy

Tressie McKeon writes:

The Federal Aviation Administration has been slow to enact regulations allowing drones to operate commercially in the United States.  In 2016, the FAA published rules allowing very limited use of drones for commercial purposes. While the FAA did need to get rules in place to ensure public safety, it also needed to develop a system and framework to allow for the growing use of drones for a variety of commercial purposes. Unfortunately, that has not happened.

The White House, Washington, D.C.
Copyright: pigprox / 123RF Stock Photo

Current regulations severely curtail the use of commercial drones and stifle their potential. Companies like Amazon, Google and UPS are allowed to operate commercial drones in the United States — but only under very limited circumstances. For example, if flying a drone for a commercial purpose you must: 1) keep the aircraft in line of sight; 2) fly under 400 feet; 3) fly during the day; 4) fly at or below 100 mph; and 5) cannot fly over people (and this is not an inclusive list). These rules effectively tie the hands of many companies from using drones for any significant purpose.

The development, use and potential uses for drones has sky rocketed in the United States. However, the regulatory framework needed to pave the way for this new industry is simply not there. In short, the FAA has been unable to develop a system for getting drones from point A to point B similar to what exists  with air traffic control for commercial aviation in the United States.

The FAA’s website states:

“The FAA’s vision for fully integrating UAS into the National Airspace System (NAS) entails UAS operating harmoniously, side-by-side with manned aircraft, occupying the same airspace and using many of the same air traffic management systems and procedures.”

The problem is, the FAA is struggling with how to accomplish this. And, to be fair, it is no easy task.

Trump’s executive order is a message to the FAA to turn this “vision” into a reality. Now. It encourages the FAA to seek the input from state and local governments to craft a strategy for the national management of UAS operations. Trump’s order also makes it clear that these entities need to coordinate with the private sector in creating this framework.

Regardless of your politics, creating a regulatory framework that balances the benefits of UAS technology but also keeps the risks to public safety and security to a minimum will benefit our economy and consumers.


Tressie E. McKeon is an associate in the firm’s Litigation Department and head of its Aviation practice, resident in its Dallas office.

Tressie McKeon writes:

Drone laws today are confusing.  Looking around the country we see that many states and cities have passed their own laws and regulations to ban or restrict the use of drones.  For example, in Texas, Texas Government Code Section 423 provides that an individual commits an offense if they use a drone to “capture an image of an individual or privately owned real property with the intent to conduct surveillance on the individual or property captured in the image.”  Thus, in Texas, you cannot use drones for spying.  But, you can still fly them, right?

Texas state capitol building in Austin, TXFor now, it appears you can if you are a hobbyist and not using the drone for commercial activities.  State and local governments have no authority over the airspace. The federal government, i.e. the Federal Aviation Administration (FAA), under 49 U.S. Code § 40103 “has exclusive sovereignty of airspace of the United States.” If all navigable airspace is overseen by the FAA, what can state and local governments regulate regarding commercial drones?  Those boundaries of the law will be tested in the years to come as drone use becomes more prolific.

As an example, the state and local governments may be able to control take-off and landing sites for commercial drones.  The states may also be able to restrict flights by using regulations more akin to trespassing statutes than by trying to control the air space.

For example, Texas Government Code Section 423.0045 enumerates the offense of operating a drone over critical infrastructure, such as dams, power plants, etc… Why might this state restriction not be preempted by the FAA?  The section restricts the offense to include areas only if “completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders, or if clearly marked with a sign or signs that are posted on the property, are reasonably likely to come to the attention of intruders, and indicate that entry is forbidden.”  And, it is even narrower in application as the drone must be flown below 400 feet over the structure, make contact with (i.e. crash into) the structure or interfere with the operation of the structure.  This is more akin to trespass than a direct attempt to control the airspace.

So what is the takeaway?  States cannot control the airspace per se, but it appears they might be able to use statutes that rely on other enforcement actions, like trespass, to restrict drone flight.


Tressie E. McKeon is an associate in the firm’s Litigation Department and head of its Aviation practice, resident in its Dallas office.

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.

There is no doubt that drones are going to drastically improve our lives. Drones are already being used to deliver medical supplies in third-world countries, survey land, film live events, assist police in investigations and surveillance, inspect tall buildings and other large structures, among other things. But, these advances in technology will come with a price when it comes to safety and preventing terrorism in the United States.

Drones, UAVs and terrorismDrones have reportedly already been used by drug cartels to smuggle drugs into the United States and to infiltrate prisons to deliver drugs, money and cell phones. It has also been reported that ISIS is using both weaponized and surveillance drones. Suicide drones are becoming an increasing problem in Syria given the ease of access to equipment for a small amount of money.

While drones will be able to improve our lives, they also have dark potential. The question seems to be not if but when a drone will be used in the United States to carry out a terrorist attack. The question that we need to answer is this: How do lawmakers stop terrorists from using drone technology to carry out attacks here in the United States?

From a policy perspective, what can U.S. lawmakers do, if anything, to prevent such an attack? While lawmakers here have been relatively silent on the issue, China has enacted a number of rules limiting where drones can legally fly. However, this is only a piece of the puzzle as legislators have no meaningful way to enforce these laws. For now at least, we will have to rely on drone manufacturers to incorporate safety features to prevent use by terrorists.

One of the largest drone manufacturers, DJI, is currently developing a Geospatial Environment Online system (“GEO”). This system will provide flyers with up-to-date guidance regarding areas where flight may be limited by regulation or raise safety concerns. More importantly, the GEO will be able to limit drones, by default, from taking off or flying into areas that may raise safety or security concerns such as major stadium events, prisons, or nuclear power plants. The ability to control where drones can be flown, and detect how they are being used, will be vital to ensuring our national security.

Someday relatively soon drones will be used in the United States to deliver packages, groceries, emergency medical supplies, and conduct police surveillance, among many other things. But protecting us from terrorists that will try to use them to carry out terrorist attacks, for good or for bad, may largely fall on the shoulders of drone manufacturers—not U.S. lawmakers.


Tressie E. McKeon is an associate in the firm’s Litigation Department and head of its Aviation practice, resident in its Dallas office.

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.

Air Traffic Control RadarThe FAA has recently partnered with various digital platforms to create the “Low-Altitude Authorization and Notification Capability” (LAANC) in an effort to streamline waiver authorization in controlled airspace. Normally, the process to obtain a waiver to fly in controlled airspace can take 90 days or even longer.

But for some commercial operators who may need to get in the air quickly, that process makes little sense. For example, when there is breaking news, a journalist cannot sit back and wait for the waiver process to be able to capture what is happening at that moment.

That is why LAANC seeks to provide instant waivers by allowing commercial pilots to apply digitally using the same applications they already use for flight planning. The LAANC partners, many of whom are already working with the FAA to digitally map the airspace, will provide for areas of controlled airspace that are already preapproved under certain conditions (i.e. altitude, weather, etc.).  If a commercial drone operator is seeking to fly in that airspace, under those conditions, they may receive instant authorization to fly.

While the current program is limited to only 50 airports, the goal is to expand this program nationwide. This appears to coincide well with the FAA’s other initiatives to develop an air traffic management system for drones and is yet another example of the FAA’s efforts to expand commercial operation.


Jonathan Ash is a partner in the firm’s Labor & Employment Department, resident in its Princeton office.

We have previously noted that people often view new technology with skepticism, and even trepidation bordering on fear. That perception changes as both costs decrease (resulting in more people using and adapting to the new technology) and the recognition of the tangible benefits produced by the new technology. In the early 20th Century, both automobiles and planes were new technology, and were initially met with resistance and skepticism.

A recent NASA study analyzed human reaction to audio recordings of noise created by automobiles, drones, as well as computer generated sounds (auralizations). In short, the study found that the human subjects rated noise created by drones as significantly more annoying than traffic noise.

It is important to note (and the study itself notes) that this is a single study and it “was not conceived to be a comprehensive examination of noise from either sUAS or road vehicles. Rather, it was meant, primarily, to demonstrate the extensibility of tools and facilities that NASA already possesses to the realm of sUAS noise. Therefore, it is unwise to attempt to generalize the results of this study beyond those stated in the discussion, and beyond the limited set of vehicles and conditions tested.”

The study also notes that the sound made by a drone does not qualitatively resemble the sound made by manned aircraft. As noted in the study: “This difference in sound quality introduces an unknown factor into the prediction of the resultant annoyance.”

Although this is a single study and is limited in scope, the initial analysis of the results of the study suggests that at least for the near future, the noise created by drones is another hurdle to overcome in accomplishing widespread public acceptance of having drones operating in near proximity to humans.

Another takeaway from the study is that human reaction to the noise from drones may compel some local governments to enact regulations governing where drones can operate due to the fact that people appear to find drone noise more objectionable than other routine background noise. Such would be unfortunate, assuming that the drone noise in question is no louder than other background noise.

 

Powered by developments in aviation, sensing, and software technology, the drone industry is projected to be one of the fastest growing industries, with sales expected to top $12 billion by 2021.[2] Within the next decade, the commercial drone industry alone is expected to generate more than $82 billion and could provide 100,000 new jobs.[3]

The unprecedented growth of the drone and unmanned aerial systems (“UAS”) industry has not waited for governmental regulation to catch up. Now, federal, state, and municipal governments are struggling with how to regulate UAS use. Regulation of UAS by both federal and state governments has led to issues relating to federal and state preemption, with both authorities continuing to assert that they possess the authority to regulate drones. For instance, the U.S. Senate recently introduced the Drone Federalism Act of 2017.

Illinois is another State that has recently has taken its first steps to lay the groundwork for UAS regulation and the future use of drones in the State.

Freedom from Drone Surveillance Act

Presently, the only statute in Illinois expressly addressing drone use is the Freedom from Drone Surveillance Act (the “Act”).[4] The Act provides generally that law enforcement agencies cannot use drones to gather information.[5] However, the Act allows for the use of drones by a law enforcement agency in the following limited circumstances:

  1. to counter a high risk of a terrorist attack if the United States Secretary of Homeland Security determines that credible intelligence indicates there is that risk;
  2. if a law enforcement agency first obtains a search warrant based on probable cause, provided the warrant is limited to 45 days;
  3. if a law enforcement agency possesses reasonable suspicion that swift action is needed to prevent imminent harm to life, or to forestall the imminent escape of a suspect or destruction of evidence; provided, however, the use of the drone is limited to a period of 48 hours;
  4. if a law enforcement agency is attempting to locate a missing person, and is not also undertaking a criminal investigation;
  5. if a law enforcement agency is using a drone solely for crime scene and traffic crash scene photography; provided, however, the use of a drone on private property requires a search warrant based on probably cause or lawful consent to search; and
  6. if a law enforcement agency is using a drone during a disaster or public health emergency.[6]

Moreover, except as provided by one of the exceptions above, a law enforcement agency may not acquire information from or direct the acquisition of information through the use of a drone owned by a private third party.[7] If a court finds by a preponderance of the evidence that a law enforcement agency used a drone to gather information in violation of the Act, then the information is presumed to be inadmissible in any judicial or administrative proceeding.[8]

The Illinois Unmanned Aerial System Oversight Task Force

On August 18, 2015, Public Act 99-392 became effective, creating the Unmanned Aerial System Oversight Task Force (the “Task Force”). The mission of the Task Force was “to study and make recommendations for the operation, usage, and regulation of Unmanned Aerial Systems.”[9] On June 30, 2016, the Task Force submitted its recommendations to the Governor and General Assembly, which struck a balance between safety, deference to federal oversight, and allowing commercial use of UAS to become a considerable economic driver in Illinois.[10]

The Task Force found that UAS operations should generally be permitted if they do not cause a safety hazard, do not infringe on the privacy or property rights of others, and if performed in accordance with applicable FAA rules and regulations.[11] Any legislative action relating to UAS was recommended to be flexible to adapt State-level oversight to the changing UAS regulatory landscape at the federal level.[12]

To this end, the Task Force found that statutes currently exist that address individual concerns, such as privacy and property rights.[13] For instance, statutes and ordinances exist regarding voyeurism, harassment, stalking, disorderly conduct, public nuisance, reckless endangerment, and recording of individuals in locations where there exists a reasonable expectation of privacy.[14] As such, the Task Force found no reason to create numerous new laws or amend existing statutes related to acts committed by UAS.[15] Rather, it was recommended that the General Assembly consider a global “extension of oneself” clause that would serve to link the operator with the UAS.[16]

The increased use of drones also raises questions regarding the balance between federal and state regulation. Importantly, the Task Force analyzed the topic of preemption at length.[17] With regard to federal preemption, the Task Force determined that any State-level oversight relative to UAS operations should complement and not conflict with FAA rules and regulations.[18] As to State preemption, the Task Force recommended that the General Assembly enact State-level preemption regarding UAS oversight in Illinois.[19] The Task Force reasoned that a patchwork of local ordinances would lead to confusion and would place an increased burden on UAS operators and the UAS industry.[20] In addition, a patchwork of local ordinances would negatively impact commercial and public operators that operate UAS in multiple locations throughout the State and across municipal boundaries.[21]

The Task Force also focused on the potential commercial use of UAS in Illinois.[22] Finding the commercial use of UAS is heavily regulated at the federal level, the Task Force noted that commercial use should generally not be subjected to additional operating restrictions provided operations are performed safely and in accordance with the FAA.[23] The Task Force determined that UAS can develop into an economic driver for the State, by enhancing employee efficiency and productivity, through retail sales revenues, and also by creating or sustaining jobs in UAS design, development, manufacturing, distribution, retail, and professional commercial operators.[24]

City of Chicago

Chicago was the first major American city to approve a comprehensive set of drone regulations.[25] The regulations appear to balance protecting public safety while at the same time encouraging innovation and technology.[26] The ordinance provides that it is unlawful to operate a drone in the City unless it is registered with the Department of Aviation.[27] Registration is valid for one (1) year and costs an annual fee of $50.[28] In addition, the owner of a drone must maintain a liability insurance policy that insures the owner, lessee, and operator of the aircraft.[29] The insurance policy must name the City of Chicago as an additional insured.[30] A drone must also have a valid identification tag issued by the Department of Aviation affixed to it.[31]

Under the ordinance, it is unlawful for a person to operate a drone in City airspace: for the purpose of conducting surveillance, unless permitted by law; within five (5) miles of an airport; that is equipped with a firearm or other weapon; with intent to use the small unmanned aircraft to cause harm to persons or property; within one-quarter mile of an open air assembly unit, school, hospital, or place of worship; at any altitude higher than four hundred (400) feet above ground level; outside the line of sight of the operator; while under the influence of alcohol or drugs; whenever weather conditions would impair the operator’s ability to do so safely; or between the hours of 8:00 p.m. and 8:00 a.m.[32] Any person who violates the ordinance will be fined not less than $500.00 nor more than $5,000.00 for each offense, or may be incarcerated for a term not to exceed 180 days, or both.[33]

Favorable regulations relating to drone use could result in great economic potential for the future use of drones in Illinois, a notion that the Task Force seemed to understand. The Task Force’s recommendations balance the competing interests of public safety and commercial use. It is still too early to tell if the General Assembly will heed the Task Force’s advice. However, practitioners and businesses operating in Illinois should be on look-out for legislative and regulatory changes in this burgeoning area of the law. In addition, continue to visit Fox Rothschild’s blog for updates on how such changes will affect the general landscape of UAS regulations.

[2] BI Intelligence, The Drones Report: Market forecasts, regulatory barriers, top vendors, and leading commercial applications, June 10, 2016, available at http://www.businessinsider.com/uav-or-commercial-drone-market-forecast-2015-2

[3] The White House, Fact Sheet: New Commitments to Accelerate the Safe Integration of Unmanned Aircraft Systems, August 2, 2016, available at https://www.whitehouse.gov/the-press-office/2016/08/02/fact-sheet-new-commitments-accelerate-safe-integration-unmanned-aircraft

[4] 725 ILCS 167/1, et. seq.

[5] 725 ILCS 167/10.

[6] Id. at § 15.

[7] Id. at § 40.

[8] Id. at § 30.

[9] 20 ILCS 5065/15(a).

[10] Illinois Unmanned Aerial System Oversight Task Force, UAS Recommendations Report, June 30, 2016, available at http://www.idot.illinois.gov/Assets/uploads/files/Transportation-System/Reports/Aero/IUASOTF/UAS%20Recommendations%20Report-IUASOTF-2016-06-30.pdf.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Justin Peters, SLATE, Chicago Becomes the First Big City to Enact Drone Regulations, Nails Them, Nov. 20, 2015, available at http://www.slate.com/blogs/future_tense/2015/11/20/chicago_enacts_drone_regulations_that_are_really_good.html.

[26] Id.

[27] Chicago Municipal Code, 9-121-020(a).

[28] Id. at 9-121-030(a).

[29] Id. at 9-121-040(a).

[30] Id. at 9-121-040(b).

[31] Id. at 9-121-050(a).

[32] Id. at 9-121-060(a).

[33] Id. at 9-121-070.

With the Trump Administration’s focus on jobs and building the economy, it makes perfect sense that it would explore opportunities in one of the fastest growing industries right now: drones.  In what may be the first direct outreach to the drone industry, President Trump is scheduled to meet with leaders of several drone companies to discuss the growing industry and the regulatory landscape. According to a White House spokesman, President Trump will see “demonstrations of how these technologies will contribute to the 21st century economy and how the government can ensure that their safe adoption leads to the best possible outcomes for the American worker and American businesses.”

U.S. based companies Kespry, AirMap, Airspace and PrecisionHawk are expected to be in attendance, among others. These companies focus on drone software for such things as mapping and analysis as well as drone security.

The White House, Washington, D.C.
Copyright: pigprox / 123RF Stock Photo

Also of note is that this meeting comes a day after the first meeting of the Remote Identification Aviation Rulemaking Committee of the Federal Aviation Administration, which is scheduled to meet on June 21, 2017. This Committee is tasked with creating new standards for remotely identifying and tracking drones. In addition to helping law enforcement with security concerns, remote identification could provide the starting point for an air traffic management system for drones.  This could then pave the way for expanded operation of drones, including beyond line of sight, among other expansions that could allow for things like drone delivery.

This increase in activity by the administration in the area of drone technology coupled with the recent announcement of privatization of air traffic control, helps foster the conclusion that expanded operation or additional waivers for commercial use could be coming faster than people anticipate.  This administration appears ready to address ways to help the industry grow.  We will follow up with any significant developments from these meetings.


Jonathan Ash is a partner in the firm’s Labor & Employment Department, resident in its Princeton office.

The challenge presented by having federal, state and local authorities all attempting to regulate drones is a topic we have addressed on this blog and in other publications (see links below). Unfortunately, a solution to that challenge remains elusive.

State and local authorities continue to assert that they possess the authority to regulate drones. That position, coupled with the current state of the federal regulatory process , has now been further complicated by the introduction of the Drone Federalism Act of 2017 (“Drone Federalism Act” or “Act”) also known as S. 1272, which was recently introduced in the U.S. Senate by Senator Feinstein.

If enacted, the Drone Federalism Act will amend Section 336 of the FAA Modernization and Reform Act and will provide states broad rights to regulate drone operations. It requires the FAA Administrator to not only define the preemptive effect of federal regulations regarding unmanned aircraft operations, but it also requires the Administrator to: “preserve, to the greatest extent practicable, legitimate interests of State, local, and tribal governments, including— (A) protecting public safety; (B) protecting personal privacy; (C) protecting property rights; (D) managing land use; and (E) restricting nuisances and noise pollution.”

The Drone Federalism Act also requires the Administrator, when enacting regulations or standards regarding drones, to “ensure that the authority of a State, local, or tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted.”

The Act specifically states that “reasonable restrictions” include:

  • Limitations on speed
  • Prohibitions or limitations on operations in the vicinity of schools, parks, roadways, bridges, or other public or private property;
  • Restrictions on operations at certain times of the day or week or on specific occasions such as during parades or sporting events;

  • Prohibitions on operations while the operator is under the influence of drugs or alcohol;

  • Prohibitions on careless or reckless operations; and

  • Other prohibitions that protect public safety, personal privacy, or property rights, or that manage land use or restrict noise pollution.

58499289 – no drone, multicopter prohibited symbol. not fly zone. sign indicating the prohibition or rule. warning and forbidden. flat design. vector illustration. easy to use and edit.

If enacted, the Act will only lead to a further patchwork of state and local laws, making compliance for drone operators exceedingly difficult. We have addressed some of those concerns in other writings.

While a solution to the patchwork of laws is necessary, the Drone Federalism Act does not solve that problem. Rather, it only exacerbates the problem.