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The American Bar Association (“ABA”) Forum on Air & Space Law recently launched a committee on Drones: Regulations, Operations and Litigation (“Drone Committee”).  This new committee aims at serving the ABA community and beyond to provide insights on current and upcoming Unmanned Aircraft Systems (“UAS”) developments and challenges.

Each month, the Drone Committee offers a webinar featuring an expert speaker in the field of drones to discuss a specific UAS law issue, followed by a Q&A session with the audience.  Earl Lawrence, FAA’s Director of UAS Integration Office, and Mark Aitken, Director of Government Relations at AUVSI, already participated in previous Drone Committee webinars.  They discussed, among other topics, the FAA’s next UAS rules and provided a Congressional update on the integration of UAS in the national airspace system.  The Drone Committee is also developing other future programming.

The next Drone Committee webinar is scheduled for March 9, 2017 at 1:00pm EST.  The webinar will feature Diana Marina Cooper, Vice President of Legal & Policy Affairs at PrecisionHawk, a leading UAS manufacturer and provider of airspace management solutions that promote safety and privacy in UAS operations.  Diana will discuss the issue of privacy associated with the use of drones, specifically the current situation regarding privacy, the main challenges, how the industry has responded, and what the future may hold.

To join the Drone Committee, contact Committee’s Chair, Jennifer Trock at jennifer.trock@pillsburylaw.com, or the Committee’s Vice-Chair, Katie Thomson at kthomson@mofo.com.

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Project applicants and permitting and funding agencies often gather extensive scientific data to support project evaluations under environmental laws such as the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA). With the implementation the new Small Unmanned Aircraft Systems (sUAS) Rule (Title 107) by the Federal Aviation Administration, the opportunity for industry, government, and non-governmental organizations to collect important environmental data previously unattainable due to safety, expense, or technology constraints is set to expand. These stakeholders are already reaping the benefits of conducting less intrusive and more in-depth wildlife surveys and other biological field work using UAS technology, and Title 107 will increase those opportunities. For a look at some of the latest UAS-assisted research projects by the United States Geological Survey (USGS), see http://rmgsc.cr.usgs.gov/uas/. These projects will broaden government agencies’ understanding of the environment and ability to develop appropriate management or mitigation plans based on reliable data.

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Early Adopters and Immeasurable Opportunities

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Whether it is helping natural resource companies survey their mines, oil and gas companies monitor their pipelines and inspect their flare stacks, farmers improve crop yields, commercial building inspectors conduct roof inspections, or universities advance scientific research, UAS are capable of saving time, money, and, most importantly, lives. Below is a small list of the industries devising methods to use UAS to increase operational effectiveness, mitigate risk, reduce operating costs, and maximize return on investment.

  • Industries that rely on surveying or high-resolution imagery (oil and gas, agriculture, etc.).
  • Industries concerned with safety and security—from construction to nuclear power to historic preservation. For example, in Peru archeologists are using UAS to map archeological sites and protect them from vandals.
  • Industries interested in delivering goods and services. This includes retailers such as Amazon as well as governmental and nonprofit organizations. For example, the Bill & Melinda Gates Foundation is funding research into deploying UAS to deliver health care supplies to areas made inaccessible after disasters.
  • Industries that want to provide services in areas that are difficult to access or in which infrastructure cannot support ground-based solutions. High altitude, long endurance UAS can be used to provide internet access in remote areas.

A Developing Regulatory Landscape
With the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Modernization and Reform Act), Congress tasked the FAA with safely integrating UAS into the National Airspace System (NAS) by 2015. The FAA has taken an incremental approach to UAS integration and announced the first rule for commercial operations of sUAS in the national airspace on June 21, 2016. The first major domestic UAS users were public institutions (e.g., public universities) and public agencies, both state and federal. In September 2014, the FAA began permitting commercial sUAS operations by issuing exemptions authorized under Section 333 of the FAA Modernization and Reform Act, commonly referred to as Section 333 exemptions. Section 333 exemptions have been issued to a wide range of industries, including movie production, agricultural, construction, real estate, surveying/photography, and oil/gas. After August 29, 2016, when the sUAS rule takes effect, this special exemption will no longer be required. In the meantime, current Section 333 exemption holders may continue operating under the terms and conditions of the existing until its expiration or conduct operations under Part 107 as long as the operation falls under Part 107. (Check in with us for updates regarding the sUAS rule and Section 333 exemptions.) Part 107 permits commercial operations of sUAS weighing less than 55 pounds as long as pilots abide by the required safety restrictions, including, among others:

  • Operations only within visual line of sight (VLOS);
  • No operations over non-participants;
  • Daytime operations only or civil twilight operations with the appropriate lighting;
  • Maximum airspeed of 100 mph; and
  • Maximum altitude of 400 feet above ground level or within 400 feet of a structure.

The rule permits the transportation of property for compensation or hire, provided that: the aircraft’s total weight, including payload, weighs less than 55 pounds; the flight is conducted within VLOS; and the flight occurs wholly within the bounds of a state.

The rule requires the sUAS operator to hold a remote pilot airman certificate with an sUAS rating. To attain a remote pilot certificate, the operator must be at least 16 years of age, be vetted by the Transportation Security Administration, either pass an aeronautical knowledge test at an FAA-approved training center or hold a Part 61 pilot certificate, complete a flight review within the previous two years, and complete a sUAS training course.

With this first rule, the FAA has taken a big step toward formally integrating UAS into the NAS. The rules reflect the FAA’s risk-based approach to integrating UAS, addressing commercial operations that pose the least amount of risk with minimal requirements and limitations while leaving the door open for future requirements specific to UAS under 4.4 pounds, also known as “micro” UAS. A waiver mechanism allows the FAA to permit operations outside the Part 107 restrictions, including beyond-visual-line-of-sight and nighttime operations, to be assessed on a case-by-case basis if the applicant can demonstrate that the operation sought can safely be conducted under the terms of a certificate of waiver.

As the FAA continues to shape the UAS regulatory landscape, key privacy, spectrum, environmental, security, and other questions surrounding UAS remain far from resolution. Among the most noteworthy issues is the lack of privacy provisions associated with the operation of drones.

The White House tasked the National Telecommunications and Information Agency with establishing a multistakeholder engagement process to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private UAS use in the NAS. Stakeholders at the May 18, 2016 meeting agreed to conclude the process, and a diverse group of stakeholders came to consensus on a best practices document. The document can be found here.

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Terms referring to drones are often used interchangeably among operators, regulators and manufacturers. Many people use the common term “drone,” while commercial operators, public organizations and associations refer to more specific terms, such as unmanned aircraft systems (UAS), small UAS (sUAS), unmanned aerial vehicles (UAV), and remotely piloted aircraft systems (RPAS).

Below is a description of the different terms to help navigate in the drone (or your preferred term) industry. Continue reading →

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The Federal Aviation Administration (FAA) generally prohibits small unmanned aircraft system (sUAS) flight operations within 500 feet from all persons, vessels, vehicles, and structures. However, closer-in operations of sUAS been approved in varying degrees depending on whether the person is a direct participant. Typically, the FAA has allowed sUAS operations within 500 feet from direct participants and without minimum distance requirements in the closed-set filming context. However, recent FAA Section 333 exemptions have expanded applications for operations within 500 feet of direct participants.

For example, a California-based ski-videography company, Cape Productions, received a Section 333 exemption to fly its sUAS to record videos of participant skiers in action closer than 500 feet – similar to the motion picture exemptions. However, the FAA held that although the sUAS could fly over those operating the sUAS (such as the Pilot in Command and the visual observer) the ski-drones could not fly over the skiers/participants or operate within 500 feet of non-participants unless barriers or structures were present to protect them from the sUAS and/or debris or hazardous materials in the event of an accident.

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On April 19, the United States Senate passed bipartisan legislation that would reauthorize federal funding for the Federal Aviation Administration for the next two fiscal years. The Senate-passed bill, which will not take effect until the House and Senate negotiate a compromised legislation and the President signs the resulting legislation into law, includes a comprehensive regulatory regime for unmanned aircraft systems (UAS).

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The FAA has approved small unmanned aircraft system (sUAS) research flights—some of which have already started—to test new technologies and new operating procedures which may be the basis for future regulations.

Certain organizations and commercial entities, such as PrecisionHawk, BNSF Railroad and CNN, have reached out to the FAA and developed Cooperative Research and Development Agreements (“CRDA”).  These research agreements are provided pursuant to the Federal Technology Transfer Act of 1986 (15 U.S.C. 3701 et seq.) and have allowed these companies to begin testing beyond line-of-sight and nighttime operations at FAA’s test sites and other locations.

Current sUAS regulations for non-commercial operations and section 333 exemptions require that sUAS, among other limitations:

  • Be flown less than 400 feet above ground level (“AGL”);
  • Be within the operator’s visual line-of-sight at all times;
  • Not be flown at night; and
  • Not be operated in populated areas.

Regarding the line-of-sight requirements, the FAA approved recent test flights in North Carolina to test extended agricultural flights beyond the sight of the operator.  Reports also suggest that this testing will also experiment with “see and avoid technology” that will allow UAS to automatically avoid objects or no-fly zones.[1]  BNSF railroad also has the FAA’s permission to run test sUAS flights beyond the line-of-sight to inspect its rail infrastructure, although the flights remain limited to 400 feet AGL.[2]

At the North Dakota UAS Testing Facility, the FAA has approved test flights at night and up to 1,200 feet AGL, taking advantage of North Dakota’s relatively quiet airspace and flat terrain.  Night flights present potentially safer operating conditions with less air traffic and lower wind speeds.[3]

The FAA has also approved the news agency CNN’s test flights for news gathering purposes in populated areas.  The UAS will have to be tethered and remain within the operator’s line-of-sight.[4]

Allowing this limited testing for entities with a CRDA will allow the FAA to collect critical data regarding the safety considerations of each unique flight.  The flights also hint at future regulatory changes.  While unlikely to be reflected in the sUAS rules that are expected in June 2016, the testing is a promising step for demonstrating to the FAA that improved sUAS technologies can operate safely in circumstances that present increased risk.

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As Congress prepares to return for a busy post-Labor Day session, some lawmakers are considering new drone-related provisions that could be included in FAA reauthorization legislation.

Congressman Peter DeFazio (D-Oregon) serves as the top ranking Democrat on the House Transportation and Infrastructure Committee.  In a recent letter to the Department of Transportation, Congressman DeFazio sought suggestions for ways to improve drone safety.  Congressman DeFazio is seeking DOT’s guidance in identifying resources – and potential new statutory authority – that FAA needs to promote UAS safety.

With the expiration of the Federal Aviation Authority (FAA) looming on September 30, 2015, UAS policy will continue to be a hot topic for regulatory and legislative developments this fall.  Our expectation is that a comprehensive reauthorization will not be completed until the beginning of 2016 (likely later), though a short-term reauthorization of the FAA is likely (there were 23 short-term extensions before the most recent FAA reauthorization was enacted).  We expect that the ultimate comprehensive reauthorization legislation will include language to help integrate UAS into the National Airspace System.

Congress continues to oversee efforts at the FAA to finalize its final rule on small UAS by June 2016.  To meet this timeline, FAA will need to submit a draft it a final rule to OMB by the end of 2015.

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Unmanned aircraft systems (“UAS”) are appearing more frequently at sporting events in the US.  FOX Sports reported on June 1, 2015 that local police questioned a man flying a UAS inside Citizens Bank Park during a Philadelphia Phillies game.  The flight violated the FAA’s rules barring the use of UAS below 3,000 feet and within 3 miles of large stadiums.  Although not charged by police, Phillies security asked the man to erase images taken by the UAS, citing intellectual property.

Television viewers of the 2015 U.S. Open Championship golf tournament may see footage taken by UAS.  According to GeekWire, FOX Sports’ coverage will include aerial footage by HeliVideo.  HeliVideo is still restricted from operating within 500 feet of all nonparticipating persons, including the U.S. Open Championship crowds, unless barriers or structures are present that sufficiently protect such persons from the UAS and/or debris in the event of an accident.  If the UAS gets within 500 feet of the nonparticipating persons without protective barriers or structures present, the flight operations must cease immediately.

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