Article by Lem E. Montgomery III
On August 29, 2016, the Federal Aviation Administration’s (FAA) new rule governing non-recreational use of small unmanned aircraft systems or “drones” became effective. The new rule – formally known as Part 1071 – is designed to allow for routine business use of drones while “minimiz[ing] risks to other aircraft and people and property on the ground.”2 What follows is a short review of recent developments in FAA drone regulation and the major civil liability issues expected to result from drone use in American airspace.
A drone3 is simply a powered aircraft with no human operator on board. Referred to by the FAA as unmanned aerial vehicles (UAVs) or unmanned aerial systems (UASs), drones “come in a variety of shapes and sizes and serve diverse purposes.”4 “They may have a wingspan as large as a jet airliner or smaller than a radio controlled model airplane.”5
Drone or “UAS” technology is no longer the wave of the future; the technology is already here. Potential advantageous applications range from surveillance, to firefighting, to agriculture, to delivery systems and more. Some experts predict the global market for commercial drone applications may reach $127 billion by the year 20206; up from $552 million in 2014.7 But despite its promise, drone technology also presents opportunities for misuse, accident, tortious activity, and even intentional or illegal misconduct. Drone technology is expected to raise new civil liability issues not only in the area of traditional aircraft liability, i.e., negligence and product liability claims arising from crash incidents and other events, but also invasion of privacy, nuisance, trespass, and even malicious acts with weaponized drones. Because they are inherently different from manned aircraft, integrating drones into the nation’s airspace presents a significant challenge for the aviation and legal communities.
Drone Regulation: From Model Airplanes to Modern Drones
Drones are considered “aircraft” and are regulated by the FAA.8 All “aircraft,” from jet airliners to small model airplanes, must comply with the rules and regulations of the FAA. However, understanding drone regulation requires an understanding of the FAA’s historical stance on small remote operated aircraft or “model” aircraft.
While model airplanes and aircraft have been around for almost a century, the FAA has not heavily regulated toy planes flown for recreation. The FAA maintains a “hobbyist” or “recreational use” exclusion that exempts small model aircraft from the normal licensing requirements and allows, subject to certain rules of flight, the operation of small model aircraft (55 pounds and under) for recreational purposes in legal airspace without permission from the government.9 Thus, small remote or “model” aircraft are regulated primarily according to how they are used, i.e., recreational versus commercial use. While the recent proliferation of drone technology has created more opportunity for business use of small remote aircraft, the regulatory framework has remained largely the same.
Recent regulatory focus has been on commercial use of drone technology. The FAA seems to interpret “commercial use” of drones to mean, “use in exchange for value.” This seemingly simple definition is deceiving; one can easily cross unintentionally into commercial drone use. Recent news reports provide examples of wedding photographers who took aerial photos for remuneration or pay, kids demonstrating aerobatics for pay (i.e., a neighborhood “wing show”), or even individuals or small businesses posting videos obtained with a drone to ad-based social media. Examples like these have led to FAA investigations10 and, in some cases, severe penalties ranging from $27,500 in civil cases to $250,000 and three years in prison in criminal cases.11
In recent years, licensed commercial use of drones has been cost prohibitive.12 Commercial operation of aircraft, including drones, traditionally required compliance with all FAA licensing and certification standards, i.e., a commercial pilot’s license, certificate of airworthiness, proper FAA registration, etc.13 These requirements are expensive and can take years to satisfy, and the cost outweighs any profit or benefit commercial drone use may provide. The problem, though, is that companies desperately want to use drones for business. Potential commercial applications for drone technology include, but are not limited to:
- survey and inspection of remote power lines and pipelines,
- traffic and accident surveillance,
- emergency and disaster monitoring,
- cartography and mapping,
- search, rescue and recovery,
- agricultural spraying,
- aerial photography and videography,
- promotion and advertising,
- product delivery,
- weather and pollution reconnaissance,
- flight research,
- fire fighting, monitoring and management,
- atmospheric research,
- scientific research,
- oceanographic research,
- geophysical research,
- mineral exploration,
- imaging spectrometry,
- telecommunications relay platforms,
- film and cinematography,
- police surveillance, and
- border patrol and reconnaissance.14
The FAA’s new small UAS rule, FAA Part 107, now exempts small commercial aircraft from the normal “commercial aircraft” licensing and certification requirements. Since Part 107 took effect on August 29, 2016, commercial use of small drones has been open for business in America, and commercial drones will soon be integrated into the public airspace. The major provisions of Part 107 are:
- Drone weight is limited to 55 pounds.
- Drone must remain in operator’s visual line of sight.
- Drone use is limited to daylight-only operation.
- Drone must yield to other aircraft.
- Maximum air speed of drone is 100 miles per hour; maximum altitude is 400 feet.
- Drone may not be operated unless there is a minimum weather visibility of 3 miles.
- No one may act as pilot or observer for more than one drone aircraft at a time.
- Pre-flight inspections are required.
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