Federal Aviation Administration (FAA)

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.

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.

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.

Recently, several members of my Firm and I had the opportunity to speak on a panel at the New York City Drone Film Festival (“NYCDFF”) regarding legal issues and drones. Thanks to the excellent moderation of Randy Slavin, the founder of the NYCDFF, we had the opportunity to discuss several legal issues. While the presentation was directed to attendees of the NYCDFF, the discussion encompassed a fairly wide breadth of legal issues.  Among the issues discussed are the current state of drone regulations, first amendment issues, liability issues, intellectual property, drone cinematography, releases, and insurance issues. I recommend anyone who is interested to watch the video of the panel presentation. Also, if you are not familiar with the NYCDFF, I highly recommend checking it out.

 

When will I be able to fly beyond visual line of sight? When will I be able to operate a drone over people?

In the world of drone law (and in the world of drones in general), hardly a week, or even a day, passes without one or both of those questions being asked.

The drone industry welcomed the long-awaited drone regulations of Part 107, which became effective in August of 2016. However, that only whetted our appetite for more.

The current presidential administration’s public pronouncements regarding scaling back government regulations creates a concern within the commercial drone industry. Contrary to most industries, in the commercial drone industry more regulations are necessary for the drone industry to advance. Targeted regulations that permit and define the parameters of beyond visual line of sight operations, flights over people, and nighttime operations will enable the drone industry to reach its potential.

62815354 - drone regulations banner in wood type

Recently the Small UAV Coalition sent a letter to the new Director of the Office of Management and Budget requesting a limited waiver from the moratorium on new regulations. The Small UAV Coalition has a diverse membership that have all have a keen interest in the commercial use of drones, inclduing AirMap, Amazon Prime Air, Google[x], Intel, Kespry, PrecisionHawk, Verizon Ventures, Aerware, AGI, Flirtey, Fresh Air Educators, T-Mobile, and WalMart.

In that letter, the Small UAV Coalition noted that there are currently three pending rulemaking actions regarding drone operations:

  • Notice of Proposed Rulemaking, Operation of Small Unmanned aircraft Over People
  • Final Rule, Operation of Small Unmanned Aircraft Over People
  • Notice of Proposed Rulemaking, Expanded Operations

Part 107 includes a provision for the FAA to grant waivers that would permit drone operations over people and beyond visual line of sight. However, since Part 107 became effective in August of 2016, the FAA has only granted one waiver to permit operations over people and only four waivers to operate beyond visual line of sight.

As is the case with most technology, regulations pace far behind what is needed for the technology to evolve and thrive. The technology exists, but without regulations permitting its use, it cannot be utilized.

As the Small UAV Coalition noted in its letter, without regulations that permit beyond visual line of sight, operations over people, and nighttime operations, the commercial UAS industry in the United States risks stalling and falling behind other countries, such as those in the European Union, China, and Australia.

 small drone

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

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

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

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

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

Click here to view the full article.

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