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Regulatory Round-Up – FAA Reauthorization, LAANC and the ULC Tort Law Draft

Dan Elwell, the Acting Administrator of the Federal Aviation Administration (FAA), delivered the keynote speech opening the Interdrone conference earlier this month. His remarks predictably emphasized a concern for safety. He mentioned a number of regulatory hurdles facing the unmanned aircraft systems (UAS or drone) industry, namely remote identification and unmanned traffic management (UTM). He also mentioned privacy and public opinion very briefly in his speech. But how close are we to finding workable solutions to these problems? Expected legislation may help to address some of these concerns, but the UAS industry will still need more in order to fully integrate into the National Airspace System (NAS).

Remote Identification and the FAA Reauthorization Bill
Currently, Section 336 of the FAA Modernization and Reform Act of 2012 prevents the FAA from promulgating any rule or regulation regarding a model aircraft, including remote identification. Given the FAA’s goal to apply remote identification and tracking requirements to all UAS operating in the NAS, this is a problem that requires a legislative solution. Elwell stated in his speech that he was hopeful a legislative fix was coming, and he suggested that the fix might come as part of the expected FAA Reauthorization Bill. However, it is unclear whether Congress will be able to pass a long-term reauthorization before the September 30th deadline.

The House and Senate Transportation committee leaders released a bipartisan bill Saturday tacking Hurricane Florence relief spending to a five-year reauthorization of the FAA. Including disaster relief spending in the bill could make it higher priority in the Senate, but that is no guarantee that they will be able to push the bill through in six days. It is worth noting that Mr. Sanford of South Carolina offered amendment number 25 to the reauthorization bill that includes language leaving room for rules regarding the registration of certain model aircraft. Assuming this amendment remains in the final version of the bill, this would be a positive step toward remote identification.

LAANC, Pilot Program, and Unmanned Traffic Management
The Low Altitude Authorization and Notification Capability (LAANC) launched its sixth and final wave September 13th, opening up controlled airspace to commercial flights. Under current regulation, in order to operate in controlled airspace pilots need to obtain a waiver from the FAA which could take two to three months. LAANC streamlines this process, providing near-real time authorization for drone operations in airspace surrounding approximately 500 airports. This is a game changer for companies looking to conduct operations in and around cities (which are often located around airports).

However, while LAANC is a step forward for NAS integration, it does not provide a solution for operators looking to fly beyond visual line of sight (BVLOS), at night, or over people. The FAA is gathering data about how to safely expand these more complex operations into the NAS through the UAS Integration Pilot Program, but this is limited to ten participants. The data will be helpful, especially given the collaboration between the participants and local, state, and tribal governments, but both LAANC and the UAS IPP are just laying the groundwork for what the UAS industry really needs – a comprehensive UTM system.

Currently, the National Aeronautics and Space Administration (NASA) is working with the FAA to develop that UTM system. Its research, development, and testing process is nearing its final stages having completed the third stage out of four, Technology Capability Level (TCL) 3, in May of this year. NASA expects to have airspace integration requirements based on its research to give to the FAA in 2019, but it is unclear when the final stage, TCL4, will be complete.

Privacy, Public Opinion, and ULC Tort Law Draft
Briefly during his speech, Elwell touched on the concerns held by the public about safety, security, access, and privacy. Based on his remarks, the FAA intends to take these questions seriously given that public opinion is still being formed. But, it remains unclear exactly what their next steps would be. In general it appears they intend to limit the number of bad actors – he gives the attack in Venezuela as an example – or errors in the airspace that would shake people’s confidence, but that doesn’t address questions about privacy or access. Irrespective of what the FAA has in mind, we are seeing activity in this area from the Uniform Law Commission (ULC) and from Congressmen.

The Tort Law Relating to Drones Committee, convened by the Uniform Law Commission (ULC), created controversy this July with their draft Tort Law Relating to Drones Act. The ULC maintains that the rights and interests of property owners are not sufficiently protected by the current regulatory framework. The tort law seeks to remedy that by creating a bright line per se aerial trespass rule. Right now aerial trespass is similar to nuisance law, in that it requires proof of injury. The per se aerial trespass that the draft tort law seeks to create would carry presumption of injury, which would be akin to trespass to land doctrine. The result would allow private property owners to seek damages regardless of injury when a drone enters the immediate reaches of their airspace, which the draft law defines as 200 feet.

The motivating force behind this draft law appears to be a privacy issue. In Section V of the draft law’s prefatory note the committee argues that people want the ability to exclude drones from operating in the airspace close to their private property. Drones have sophisticated cameras and an ability to gather sensitive data. It is unsurprising that people would want the option to exclude a drone if it came too close to their property.

Privacy was also a key issue at the Keeping Pace with Innovation – Update on the Safe Integration of Unmanned Aircraft Systems into the Airspace hearing in May of this year. Sen. Ed Markey (D-MA) had a tense exchange with Mr. Earl Lawrence regarding data privacy and collection protections for drones. His concern was that commercial drone companies could use cameras and potentially face recognition software to assemble profiles on American families and sell that data to third party companies without consent, a concern that was amplified by the Cambridge Analytica story. Senator Markey is sponsoring a bill to address this potential problem.

It remains to be seen whether or not the ULC will adopt the Tort Law draft. A number of unmanned aircraft systems (UAS) industry stakeholders oppose the draft as written, arguing that the draft, if widely adopted, would hamper UAS industry growth. It is also unclear whether or not the tort law would hold up under questions about federal preemption. It is also unclear whether or not Senator Markey’s bill will make its way into law. But privacy will continue to be an issue as the industry continues to grow and drones become a more common fixture in our NAS.

How Close Are We?
The critical question here is how close are we to establishing a regulatory landscape that could allow the full-scale integration of drones into the NAS. It would appear that we are still fairly far from a long-term permanent solution. A fix for remote identification may come within the year as part of a FAA reauthorization bill. NASA may stick to its proposed timeline and have UTM recommendations ready by next year. But, executing those recommendations may take even longer. And furthermore, issues like how will we balance the concerns of landowners about privacy in their homes and access to their property with industry concerns about hampering growth are still in the early stages of being addressed. If the FAA doesn’t come up with a privacy plan, it runs the risk of states devising their own methods of addressing the issue resulting in an undesirable patchwork of regulations. It’s clear that we are making positive strides in the right direction, but there is a way to go before full-scale integration can become a reality.