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For Now, Drones Will Fly the Uncertain Skies

By Joseph M. Hanna – May 19, 2015

If the emergence of drones into our normal day lives up to all the hype, it may soon be hard to go anywhere without seeing one. Real estate, law enforcement, news reporting, package delivery, and even pizza delivery—as drones keep getting smaller, cheaper, and more capable, their possible applications could be endless.


But for now, a formal federal framework for regulating drones—the remotely controlled aircraft formally known as unmanned aircraft vehicles (UAVs) or unmanned aerial systems (UASs)—remains up in the air. That means the legal and regulatory challenges for businesses that want to utilize drones will likely be endless as well. In the meantime, companies will have to navigate a nebulous array of proposed federal rules and local or state guidance.


The Federal Aviation Administration (FAA) has the authority, under the Federal Aviation Act, to regulate the national airspace. Moreover, as clarified by the National Transportation Safety Board (NTSB) in Huerta v. Pirker, Docket No. CP-217 (N.T.S.B. Mar. 6, 2014), the FAA has authority to regulate drones at any altitude. Consequently, any entity using a drone must acquire an authorization such as a certificate of waiver or authorization (COA) from the FAA. See John Goglia, “NTSB Overturns Pirker Case: Finds for FAA That Drones Are Aircraft Subject to Its Rules,” Forbes, Nov. 18, 2014.


The agency categorizes drones into three groups according to the purposes the drones serve: public, commercial, and recreational.


A public entity, such as a local law enforcement office, that would like to operate a drone should apply for a COA. The FAA provides detailed information about how to apply for a COA on its website. Once cleared by the FAA, the drone usage within a particular state, at least for now, will be regulated locally.


Commercial drones, on the other hand, have been technically banned. However, since Congress passed the FAA Modernization and Reform Act of 2012, the FAA has been developing rules to integrate civilian drones into the national airspace.


In February 2015, the FAA announced the proposed rules and regulations for commercial drones to address the exponential growth of privacy and safety concerns in the meantime. “Overview of Small UAS Notice of Proposed Rulemaking,” FAA (Feb. 15, 2015). The most notable ones are as follows:


  • A small drone must be less than 55 pounds.
  • A drone must be within the visual line of sight of the operator at all times.
  • A drone must be operated only during the day.
  • A drone must be kept below 500 feet and under 100 miles per hour.
  • A drone operator must pass a test on aeronautical knowledge every 24 months.


One rule in particular grabbed the attention of the business world: A drone must be within the visual line of sight of the operator at all times. It was a huge disappointment to many businesses that were eager to launch a humanless delivery system. Despite the bad news, most drone enthusiasts seemed to welcome that the proposed rules left open the possibility of more lenient rules for microdrones under 4.4 pounds. Margot E. Kaminski, “The Rules of the Sky,” Slate (Feb. 25, 2015).


In any event, these are only proposed rules. Until the agency finalizes them, businesses must rely on section 333 of the FAA Modernization and Reform Act of 2012 to fly a drone. Section 333 grants authorization on a case-by-case basis. 


Between June 2014, when the FAA began accepting petitions for section 333 exemptions, and March 2015, the FAA had received more than 600 section 333 petitions. But the extremely low approval rate plus the long processing time—as of late March, just over 50 had been granted—frustrated many businesses. To address complaints from the business world, on March 24 the FAA announced an interim policy that streamlines airspace authorizations for certain commercial drone operators who obtain section 333 exemptions. 


The interim policy provides that the FAA will grant a COA for flights at or below 200 feet, to any drone operator with a section 333 exemption, for aircraft that:


  1. 1. weigh less than 55 pounds;

  2. 2. operate during daytime;

  3. 3. operate within the visual line of sight of the pilots; and

  4. 4. stay certain distances away from airports or heliports.

With this “blanket” 200-foot COA, commercial drones can fly anywhere in the country—except for restricted airspaces and major cities where drones are prohibited. Further, the current section 333 exemption holders would obtain the blanket COA automatically.


Since the announcement, the section 333 exemption process also seems to be expeditious and less restrictive. For example, insurance companies such as AIG, State Farm, and United Services Automobile Association (USAA) were granted section 333 exemptions to use drones in assessing damage claims. Leslie Scism & Jack Nicas, “Insurers Get Approval to Use Drones,” Wall St. J., Apr. 8, 2015.


On the same day the FAA announced the proposed rules, President Obama signed a presidential memorandum to regulate drone usage by federal agencies. It intends to ensure that the integration of drones into the national airspace considers not only the nation’s economic competitiveness and public safety, but also the privacy, civil rights, and civil liberties issues that may arise from governmental uses. Gregory S. McNeal, “What You Need to Know about the Federal Government’s Drone Privacy Rules,” Forbes, Feb. 15, 2015.


Carrying the same legal authority as an executive order, the memorandum, among others, requires agencies to make their drone policies available to the public within one year, especially those governing the collection, retention, and dissemination of information. The president also addressed privacy issues arising from privately operated drones. He directed the National Telecommunications and Information Administration under the Department of Commerce to initiate, within 90 days of the date of the memo, a process to develop a framework regarding privacy, accountability, and transparency for commercial and private drone usage. McNeal, supra.


Personal or recreational uses are largely guided by more informal recommendations from the FAA. The FAA recommends a recreational drone user adhere to safety guidelines available at http://KnowBeforeYouFly.org, an educational website developed in partnership with the Association for Unmanned Vehicle Systems International, the Academy of Model Aeronautics, and the Small UAV Coalition. Here are some of the notable suggestions:


  • A drone should not fly above 400 feet and should be kept within the operator’s eyesight.
  • A drone should not come within a five-mile radius of an airport or fly over sensitive properties such as correctional facilities or government facilities.


Until the FAA finalizes comprehensive federal drone regulations, it will have to rely on individual states to police drone operations. It received thousands of public comments before the April 24 deadline. SeeSmall UAS Notice of Proposed Rulemaking (NPRM),” FAA; “Operation and Certification of Small Unmanned Aircraft Systems,” Regulations.gov (Feb. 23, 2015). We will not see a finalized version of the regulations anytime soon.

Some say by 2017—if we get lucky. See Brian Fung, “The FAA Won’t Make Up Its Mind on Drone Rules until 2017—at the Earliest,” Wash. Post., Dec. 10, 2014.


Keywords: litigation, minorities, drones, unmanned aircraft vehicles, unmanned aerial systems, Federal Aviation Administration, certificate of waiver or authorization


Joseph M. Hanna is with Goldberg Segalla LLP in Buffalo, New York, and chair of the ABA’s Minority Trial Lawyer Committee.

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