Federal Aviation Administration (FAA)

This weekend I was fortunate enough to attend the New York City Drone Film Festival in Tribeca and appear on a panel with some of my Fox colleagues about legal issues in the drone world.  I also watched the panel on drone technology that was immediately prior to the law panel and was introduced to a truly impressive piece of technology, the Skydio R1 drone.  The R1, unlike other consumer drones on the market, is fully autonomous, meaning it flies itself and can follow you while avoiding obstacles. This had me wondering, is the world ready for this?  More specifically, is the FAA ready under the current state of regulations?

For starters, obstacle avoidance at this level is a huge benefit and something the FAA must be watching closely.  After all, if commercial operation is ever truly going to get beyond visual line of sight, it is technology like the R1 that can help make it possible.  However, as impressive as the technology is, the FAA is not going to simply trust a machine to fly itself.  And while the regulatory framework of the FAA deals primarily with commercial operations (though a recent effort by certain airline industry groups asks the FAA to regulate hobbyists and recreational use), and the R1 appears designed more for recreational use (like an expensive flying selfie stick), there are still open questions about flying and complying.

Under Section 336 of the FAA Modernization and Reform Act of 2012 (“FMRA”), recreational flying is exempt as long as it is done “in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.”  Currently, the only organization that can make such guidelines is the Academy of Model Aeronautics (the “AMA”).  Under current AMA guidelines, autonomous flights are permitted, provided that the pilot can take over manual control of the aircraft at any time.  The R1 does allow the user to take over manual control, but what does actual “control” consist of?  How quickly must the user be able to take control in order for it to satisfy that guideline?

In one of the promotional videos for the R1, for example, it shows the drone following a person on a mountain bike.  In order for that person to take control of the drone, they would have to stop their bike, get off, take out the controller and then pilot the drone.  Is that enough control to comply with the AMA guideline?  At the festival, I posed that question to Adam Bry, the CEO of Skydio and he acknowledged that it was an interesting question, but did not have an answer.  That is because “control” in that context would need a more precise definition and maybe as more autonomous drones hit the market, that definition will come.  For now though, I want one.

Now that 2017 is wrapped up, a look back at what happened in drone world in 2017 and a look to what might happen in 2018 is warranted. While there were several exciting developments, this article will focus on a handful of those deemed among the most significant.

Drone usage, both recreational and commercial, continues to grow quickly. As drone usage grows, the need for regulations to permit the safe operation becomes more and more critical.

We have now competed the first full calendar year under Part 107, which became effective in August of 2016. Since August of 2016, the FAA has granted 1,448 waivers to Part 107.

This past year witnessed the first waiver by the FAA for operations beyond visual line of sight (“BVLOS”). To date, the FAA has granted four waivers for BVLOS.

The FAA has granted a total of eight waivers for operations over people, but three of those eight were granted to the same applicant, CNN.

Also in 2017, the FAA announced the UAS Integration Pilot Program (“IPP”). Per the FAA, “The UAS Integration Pilot Program is an opportunity for state, local, and tribal governments to partner with private sector entities, such as UAS operators or manufacturers, to accelerate safe UAS integration.”  Moreover, in its announcement, the FAA stated: “The Program is expected to provide immediate opportunities for new and expanded commercial UAS operations, foster a meaningful dialogue on the balance between local and national interests related to UAS integration, and provide actionable information to the Department of Transportation (DOT) on expanded and universal integration of UAS into the National Airspace System (NAS).”

The FAA has established four objectives for the IPP:

  • Accelerate the safe integration of UAS into the NAS by testing and validating new concepts of beyond visual line of sight operations in a controlled environment, focusing on detect and avoid technologies, command and control links, navigation, weather and human factors;
  • Address ongoing concerns regarding the potential security and safety risks associated with UAS operating in close proximity to human beings and critical infrastructure by ensuring that operators communicate more effectively with Federal, State, local, and tribal law enforcement to enable law enforcement to determine if a UAS operation poses such a risk;
  • Promote innovation in and development of the United States unmanned aviation industry, especially in sectors such as agriculture, emergency management, inspection, services, and transportation safety, in which there are significant public benefits to be gained from the deployment of UAS; and
  • Identify the most effective models of balancing local and national interests in UAS integration.

In 2018, we will see a continued push from industry to enact regulations permitting BVLOS and operations over people, as well as a push from the industry to ensure safe operation of drones, including enhanced training and certification requirements for commercial operations.

The industry continues to move forward, albeit not as quickly as some would like on the regulatory side. That being said, it is still an exciting time to be involved in the world of drones, as the technology continues to evolve and the public sector continues to become more aware of the capabilities of this disruptive technology.

As 2018 unfolds, we will continue to monitor the key legal developments affecting drones in the United States.

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.

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.