Regulation of UAVs in the United States

The US Federal Aviation Administration has adopted the name unmanned aircraft (UA) to describe aircraft systems without a flight crew on board.^[1] More common names include UAV, drone, remotely piloted vehicle (RPV), remotely piloted aircraft (RPA), and remotely operated aircraft (ROA). These "limited-size" (as defined by the Fédération Aéronautique Internationale) unmanned aircraft flown in the USA's National Airspace System, flown solely for recreation and sport purposes, such as models, are generally flown under the voluntary safety standards of the Academy of Model Aeronautics,^[2] the United States' national aeromodeling organization. To operate a UA for non-recreational purposes in the United States, according to the FAA users must obtain a Certificate of Authorization (COA) to operate in national airspace.^[3] In December of 2015 the FAA announced that all UAVs weighing more than 250 grams flown for any purpose must be registered with the FAA.^[4]

Regulation

The FAA Modernization and Reform Act of 2012^[5] sets a deadline of September 30, 2015, for the agency to establish regulations to allow the use of commercial drones. In the meantime, the agency claims it is illegal to operate commercial unmanned aerial vehicles, but approves non-commercial flights under 400 feet if they follow Advisory Circular 91-57, Model Aircraft Operating Standards, published in 1981.^[1] However, the FAA's attempt to fine a commercial drone operator for a 2011 flight were thrown out on March 6, 2014 by NTSB judge Patrick Geraghty, who found that the FAA had not followed the proper rulemaking procedures and therefore had no UAV regulations.^[6] The FAA will appeal the judgment.^[7] Texas EquuSearch, which performs volunteer search and rescue operations, was also challenging FAA rules in 2014.^[8]

As of August 2013, commercial unmanned aerial system^[9] (UAS) licenses were granted on a case-by-case basis, subject to approval by the Federal Aviation Administration (FAA). Previously, COAs required a public entity as a sponsor. For example, when BP needed to observe oil spills, they operated the Aeryon Scout UAVs under a COA granted to the University of Alaska Fairbanks.^[10] COAs have been granted for both land and shipborne operations.^[11] In 2014, the FAA approved at least ten applications from specific companies for commercial use of drones, including movie-makers and surveyors.^[12][13]

In December 2013, the FAA announced six operators it was authorizing to conduct research on drone technology, to inform its pending regulations and future developments. These were the University of Alaska (including locations in Hawaii and Oregon), the state of Nevada, Griffiss International Airport in New York State, the North Dakota Department of Commerce, Texas A&M University–Corpus Christi, and Virginia Tech.^[14]

In addition to FAA certification, the regulation of usage of UA systems by government authorities in the United States for law enforcement purposes is determined at a state level. As of September 2014, 20 U.S. states had enacted legislation addressing the use of UA systems and the handling of data collected by them.^[15] Nearly all enacted laws require a probable cause warrant to be issued before the use of a UA system for surveillance purposes is authorized.^[16]

In May 2014, a group of major news media companies filed an amicus brief in a case before the U.S.'s National Transportation Safety Board, asserting that the FAA's "overly broad" administrative limitations against private UAS operations cause an "impermissible chilling effect on the First Amendment newsgathering rights of journalists", the brief being filed three months before a scheduled rollout of FAA commercial operator regulations.^[17]

The FAA is required by Congress to come up with rules for commercial use of drones by 2015.^[18]

On January 12, 2015, CNN announced that their News Network has been cleared by the FAA, in the first program of its kind to test camera-equipped drones for news gathering and reporting purposes. CNN has partnered with the Georgia Tech Research Institute to collect data for the program. The FAA said it will analyze the information to develop rules about using drones for news gathering.^[19]

On February 15, 2015, The FAA announced that up to seven thousand businesses could get approval to fly drones two years from now under proposed rules by the FAA. On Sunday the White House also issued a presidential directive that mandates federal agencies for the first time to disclose publicly where they are flying drones and what they do with the data they acquire using aerial surveillance.

In December of 2015 the FAA announced that all UAVs weighing more than 250 grams flown for any purpose must be registered with the FAA.^[4] The FAA's Interim Rule can be accessed here. This regulation went into effect on December 21, 2015 and requires that hobby type UAV's between 250 grams and 55 pounds need to be registered no later than February 19, 2016. ^[20] The FAA's registration portal for drones can be accessed here.

Notable requirements of the new FAA UAV registration process include:

• Effective December 21, 2015, if the UAV has never been operated in U.S. airspace (i.e. its first flight outside), eligible owners must register their UAV's prior to flight. If the UAV previously operated in U.S. airspace, it must be registered by February 19, 2016.
• In order to use the registration portal, you must be 13 years of age or older. If the owner is less than 13 years old, then a parent or other responsible person must do the FAA registration.
• Each registrant will receive a certificate of aircraft registration and a registration number and all UAV's must be marked with the FAA issued registration number.^[21]
• The FAA registration requires a $5 fee, though the FAA is waiving the fee for the first 30 days of the new registration period - until January 20, 2016. The registration is good for 3 years, but can be renewed for an additional 3 years at the $5 rate. ^[22]

The new FAA rule provides that a single registration applies to as many UAVs as an owner/operator owns or operates. Failure to register can result in civil penalties of up to $27,500 and criminal penalties which could include fines up to $250,000 and/or imprisonment for up to three years. ^[23]

To show problems with the FAA process, in August, 2015 an attorney was able to get FAA approval for a commercial drone that was actually a battery powered paper airplane toy. Its controllable range is 120 feet (37 meters) and maximum flight time is 10 minutes. It is too underpowered to carry a camera.^[24]

In February 2016, the FAA established a committee to develop guidelines for regulating safe UAV flight over populated areas,^[25] to the end of allowing commercial drone operation,^[26] in response to requests from companies involved in commercial drone development such as Amazon and Google.^[27]

State-level regulation

Under 49 U.S. Code § 40103, "The United States Government has exclusive sovereignty of airspace of the United States" and U.S. citizens have "a public right of transit through the navigable airspace."^[28] The FAA is invested with the authority to control traffic in navigable airspace and create operational and safety regulations on aircraft in navigable airspace. According to the FAA, "[a] navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system."^[29]:2 With respect to navigable airspace and the aircraft operating in that airspace, federal regulations have preempted the field and the ability of state and local laws to regulate use of UAVs is limited.^[29]:2-3

Examples of state and local laws that, according to the FAA, conflict with the FAA's federal legal authority and require consultation with the FAA before being enacted:^[29]:3

• Operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace. For example–a city ordinance banning anyone from operating UAS within the city limits, within the air space of the city, or within certain distances of landmarks.
• Mandating equipment or training for UAS related to aviation safety such as geo-fencing would likely be preempted. Courts have found that state regulation pertaining to mandatory training and equipment requirements related to aviation safety is not consistent with the federal regulatory framework. Med-Trans Corp. v. Benton, 581 F. Supp. 2d 721, 740 (E.D.N.C. 2008); Air Evac EMS, Inc. v. Robinson, 486 F. Supp. 2d 713, 722 (M.D. Tenn. 2007).

Examples of state and local laws that, according to the FAA, are generally permissible under the state's police powers:^[29]:3

• Requirement for police to obtain a warrant prior to using a UAS for surveillance.
• Specifying that UAS may not be used for voyeurism.
• Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing.
• Prohibitions on attaching firearms or similar weapons to UAS.

In 2014, the California State Senate passed rules imposing strict regulations on how law enforcement and other government agencies can use drones. The legislation would require law enforcement agencies to obtain a warrant before using an unmanned aircraft, or drone, except in emergencies.^[30] In 2015, Virginia passed legislation that a drone may only be used in law enforcement if a warrant has been issued; excluding emergencies.^[31] New Jersey's drone legislation passed in 2015 states that not only are you required to provide a warrant for drone use in law enforcement, but the information collected must be disposed within two weeks.^[32] Other states that have drone regulation are Florida, Idaho, Illinois, Indiana, Iowa, Montana, Oregon, Tennessee, Texas, and Wisconsin.^[33]

Anti-UAV legislation

Some locations, such as Charlottesville, Virginia, Iowa City, Iowa and St. Bonifacius, Minnesota have passed legislation that limits use of UAVs.^[34][35][36] In New York state, the city of Syracuse considered declaring the city a "Warrantless Surveillance Drone Free Zone" but put the legislation on hold after city counsellors became aware of a memorandum of understanding between the Justice Department and the Federal Aviation Administration.^[37]

Prosecutions

In 2013, a UAV flying over Manhattan collided with several buildings and crashed onto the pavement.^[38] It was reported that a man had been arrested days after the incident and that he had been charged with reckless endangerment.^[39] He was identified because he was seen in the video recorded by the drone.^[39] The Federal Aviation Administration fined the man $2,200.^[40] The FAA said that his operation of the UAV was "flying in restricted airspace without getting permission from controllers and flying in a "careless or reckless manner" and "endangered the safety of the national airspace system".^[40] This was the first FAA attempt to penalise a non-commercial flight.^[40]

In 2015, a drone manned by a civilian flew into the White House property. As a result, the drone manufacturer, DJI, issued a statement saying that they will now require that all of their drones would contain built-in geofencing limits.^[41]

Lobbying

"Movie makers, real-estate agents, criminal-defense lawyers and farmers are among at least 68 groups with a newfound political interest in drones according to Center for Responsive Politics data compiled by Bloomberg".^[42] At least 28 universities and local government agencies as well as Amazon hope to use drones civilly someday. Limited commercial operations for drones weighing less than 55 pounds (25 kilograms) is a proposal due to be decided upon by the end of the year.

In June 2014, the Motion Picture Association of America stated its support of an FAA exemption for the use of small drones in limited low risk scenarios in film and television productions.^[43]

References

External links

• FAA UAS Regulations and Policies
• Commercial Drones: A Dogfight at the FAA; The aviation agency prepares for a deluge of unmanned aircraft in U.S. skies, 9 February 2012