Federal Aviation Administration (FAA)

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.

Patience is bitter, but its fruit is sweet.” – Aristotle

Yeah, well, you know, that’s just, like, your opinion, man.” – The Dude

It has been a long time coming.

Indeed, it was over 4 years ago that Congress approved the FAA Modernization and Reform Act of 2012 (FMRA) requiring the FAA to integrate drones into the National Airspace System. To that end, the FMRA directed the FAA to issue rules to regulate commercial drones and have the rules finalized by September 30, 2015.

In accordance with this congressional mandate, in February 2015, the FAA published a Small UAS Notice of Proposed Rulemaking (NPRM)—or Part 107. But the September 30, 2015, deadline came and went without any word from the FAA.

Finally, on June 21, 2016, the FAA released its Part 107 rules regulating the commercial operation of drones weighing less than 55 pounds. These rules do not apply to hobby or recreational drones.

The Part 107 rules go into effect today, August 29, 2016.

 new regulations

Before the issuance of these new rules, a person seeking to fly a drone for commercial purposes was required to petition the FAA for authorization.

In particular, there were 3 ways to lawfully conduct drone operations: (1) as public aircraft operations pursuant to the requirements of the public aircraft statute and under a Certificate of Waiver or Authorization (COA) from the FAA; (2) as limited commercial operations by type certificated drone, provided the operator obtains a COA from the FAA; or (3) pursuant to Section 333 of the FAA Modernization and Reform Act (FMRA) grant of exemption provided the operator obtains a COA from the FAA.

In the upcoming months, the FAA plans to continue to enhance flexibility for those operating drones commercially by issuing more rules and regulations. In fact, by this December it is likely that the FAA will propose a rule for safely and securely flying over persons not associated with a drone operation. See 14 C.F.R. § 107.39. Also, a few months after that, many expect that the FAA will propose rules enhancing flexibility for those operating drones commercially under Part 107—such as operating drones at night. See 14 C.F.R. § 107.29.

But until the FAA issues additional rules and regulations, remote pilots must traverse the usual legal channels—if not allowed under Part 107 or the Part 107 certificate of waiver. This includes registering their aircraft under 14 C.F.R. Part 47, or pursuing a certificate of waiver or authorization, a certificate of aircraft worthiness, or a Section 333 Exemption. Hopefully these upcoming regulations will further streamline the legal and administrative processes as drone technology continues to evolve.

In June 2016, the FAA released its final Part 107 rules, allowing the operation of commercial drones in the National Airspace System (NAS). Whether these rules are infringing on the First Amendment is a developing topic. In Part I, we discussed the First Amendment and the different standards of review courts apply to determine whether restrictions on speech are constitutional. Here, we will explore and analyze the FAA’s argument that Part 107 is consistent with the First Amendment.

Restrictions on Speech in a Nonpublic Forum

Restrictions placed on activities that occur in a nonpublic forum receive the lowest level of First Amendment scrutiny. As noted in Part I, whether all U.S. airspace is a public or nonpublic forum is not clear.

Assuming, for the sake of argument, that airspace is a nonpublic forum, the FAA may impose restrictions in the NAS that are “reasonable and viewpoint neutral.” This reasonableness analysis focuses on whether the limitation is consistent with preserving the property for the purpose to which it is dedicated.

The FAA argues that Part 107 directly addresses its interest in preserving the safety of aircraft flying in the NAS, as well as the safety of people on the ground. Thus, Part 107 is reasonable.

The FAA also asserts that Part 107 is viewpoint neutral because it does not specifically target a certain opinion or stance. In short, the FAA believes that Part 107 is consistent with the First Amendment under this standard of review.

Incidental Restrictions on Speech in a Public Forum

Now, let’s assume that the NAS is a public forum. On that basis, the FAA asserts that the appropriate category in which to evaluate Part 107 would be as an incidental restriction on speech. In particular, the FAA posits that the activity regulated by Part 107—flying a drone—is not speech or an expressive activity.

Instead, according to the FAA, the flight of a small drone has only an incidental relationship to expressive conduct because it could be used to assist an expressive activity, such as recording via camera. At bottom, the FAA contends that attaching a camera to a drone simply does not transform flying that drone into expressive conduct.

But as noted in Part I, the U.S. Supreme Court has “acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope” of the First Amendment. In fact, conduct designed to convey a message to an audience is protected under the First Amendment.

Moreover, the First Amendment broadly protects photography and videography as speech that is intended to convey a message. Several courts have reaffirmed that videography and photography—key parts of the speech process and necessary to the distribution of information—qualifies as speech or expressive activity.[1] Accordingly, using drones to capture images and videos with the intention of sharing that message with an audience likely qualifies as speech that is intended to convey a message and is therefore protected under the First Amendment.

The FAA contends that Part 107 passes intermediate scrutiny. Part 107, according to the FAA, addresses aviation safety and does not directly regulate reporting or other expressive activity.

Further, the FAA asserts that anyone seeking to use a small drone for photography or videography in a manner not permitted under Part 107 is free to use another method of photography or videography. For example, a person could use a manned aircraft, film from a tall structure or landmark, film from the ground, or use specialized equipment.

The FAA concludes that because Part 107 is content-neutral and narrowly focused on the substantial government interest of regulating aviation safety, it meets the constitutional standard for an incidental restriction on speech, and enforcement would not implicate the First Amendment.

Time, Place, and Manner Restrictions on Speech in a Public Forum

To begin with, let us tweak our previous premise to assume that flying a drone in a public forum does qualify as speech or an expressive activity—which of course the FAA disputes. As noted in Part I, a constitutionally permitted time, place, or manner restriction on speech occurs when the regulation is 1) content-neutral, 2) narrowly tailored to serve a significant government interest, and 3) leaves open ample alternative channels of communication.

The FAA contends that Part 107 is consistent with the First Amendment as a permissible time, place, or manner restriction on speech for three reasons.

First, the FAA asserts that Part 107 is content-neutral because Part 107 applies equally to all remote pilots of small drones subject to FAA regulation, regardless of content. The regulation “is not being applied because of disagreement with the message presented.” According to the FAA, there is no question as to the content-neutrality of the regulation in Part 107.

Second, the FAA maintains that Part 107 fulfills several legitimate needs, the most important of which is providing the safest, most efficient airspace system in the world. The FAA contends that all the provisions in Part 107 align with that principle. Hence, Part 107 is narrowly tailored to achieve a significant, substantial, and important government interest. Also, the FAA asserts that to discard the Part 107 provisions at issue would conflict with the FAA’s stated mission of providing the safest airspace system in the world.

Lastly, the FAA claims that adequate alternative channels of communication are available for operations that are not allowed under the provisions of Part 107. The FAA notes that a First Amendment analysis does not require that a regulation be the least restrictive means of achieving the government interest, only that there not be a less restrictive alternative that serves the government’s interest as efficiently as the regulation at issue.

The FAA points to the variety of other reporting, photography, and videography tactics that have been used prior to the existence of small drones that continue to be available to this day. For example, the capability to conduct aerial photography and videography using manned aircraft remains unaffected by this rule.

To sum, the FAA contends that Part 107 regulates activity in a nonpublic forum: the NAS. If we assume, for the sake of discussion, that the NAS is a public forum, the FAA contends that the proper framework in which to view the provisions of Part 107 is not under the category of time, place, and manner restrictions, but under the category of incidental restrictions on speech.

The FAA asserts that the flight of a small drone is not speech; it is conduct other than speech which may incidentally restrict speech. Yet the FAA maintains that even if Part 107 were to be analyzed using the more stringent time, place, and manner framework, the provisions of Part 107 would still be consistent with the First Amendment.

The FAA believes that Part 107 does not infringe on First Amendment rights. Yet until challenged and litigated in court, there will continue to be legal ambiguity because several questions linger: is U.S. airspace is a public or nonpublic forum?; does flying a drone qualify as speech or expressive activity under the First Amendment?

Answers to questions like these will help orient courts to determine whether First Amendment rights are being infringed. In addition to Part 107, a litany of existing or proposed state and local laws—intended to address the privacy concerns of citizens and to restrict using drones to capture and share data—may also be vulnerable to First Amendment challenges.

[1] See, e.g., Larsen v. Fort Wayne Police Dep’t, 825 F. Supp. 2d 965, 980 (N.D. Ind. 2010); Glik v. Cunniffe, 655 F.3d 78, 82-83 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).