August 01, 2015

Drone regulations debated by experts in wake of FAA proposed rules

Amazon CEO Jeff Bezos’s comment on CBS’s “60 Minutes” in 2013 that he expected the web retailer to be able to deliver products via drones received a lot of attention nationwide, but it concerned an issue that has been around for a long time. Entrepreneurs had been waiting for years for the Federal Aviation Administration’s proposed rules on drones. They arrived in February, and already the FAA has received more than 2,000 comments on them. The proposed rules would allow companies to use drones as long as they are flown no higher than 500 feet, no faster than 100 miles per hour and only during daylight.

Drones (also known as unmanned aircraft systems or unmanned aerial vehicles) would have to be flown by licensed operators at least 17 years old—a new certification—and kept within the operator’s visual line of sight. However, three months after releasing the proposed regulations, the FAA said it was reconsidering the “line of sight” requirement.

The FAA’s proposed rules are the most significant attempt so far to regulate a new technology that is now a $2.5 billion industry worldwide, with expected expenditures of $91 billion over the next decade. While the public often connects drones (a slang term dating back to the early 1900s) to leisure pursuits, there are many commercial uses for the technology. Farmers want drones to monitor crops, companies want them to inspect hard-to-reach property, and news organizations view them as reporting tools. The agency expects to issue final regulations for operating small commercial drones by mid-2016.

In light of the growing interest in drone technology, the Section of Science and Technology Law hosted an Aug. 1 program, “Drones Incoming! Are You Ready for Unmanned Vehicles?” during the Annual Meeting in Chicago, where panelists discussed the relevant legal, financial and safety issues concerning drones.

“From Amazon’s proposal of package delivery UAVs, to the Phantom Quadcopter that crashed on the White House lawn, drones have been all over the news. And with the FAA allowing commercial UAV flights on a case-by-case basis, and receiving comments on the initial draft of proposed regulations, now is the time for attorneys to get educated on the safety, privacy and regulatory issues surrounding UAVs and their operators,” said moderator Matthew Henshon of Henshon Klein in Boston.

“In the next decade, the drone marketplace will be propelled at warp speed by the twin engines of global military demands and commercial cost efficiencies. As technology outpaces the law governing drones and their payloads, contractors must protect their trade secrets from cyber spies, while also defending the commerciality of their products against government acquisition rules that impose excessive governmental red tape, jeopardize intellectual property rights, and limit dual use sales in the public and private sectors,” said panelist David Z. Bodenheimer of Crowell & Moring in Washington, D.C. (Washington, D.C., by the way, is a “no drone zone,” according to the FAA website: “You cannot fly unmanned aircraft in D.C. or within a 15-mile radius of Ronald Reagan National Airport.”)

Calling for an activist role for the law was panelist Donna A. Dulo of the Naval Postgraduate School in Monterey, Calif., “I believe unmanned aircraft in the national airspace pose significant threat to other aircraft and entities on the ground in terms of both safety and security; the law must be proactive in these areas to avoid the potential loss of life and property,” she said.

Assistant Professor Timothy Ravich of the University of Central Florida took an international approach to the subject and warned about a stifling effect that regulation could have on this nascent industry. Ravich likened drones to antibiotics, refrigeration, automobiles and other achievements before them, saying, “The innovation of unmanned civil and commercial aviation is being disadvantaged by a precautionary principle running throughout drone regulations and policies worldwide. Perhaps more worrisome in the regulatory lag between the U.S. approach to commercial UAV operations and that of Australia, Canada, Chile, Japan, the United Kingdom and even nations in the Middle East.

Stressing the privacy aspect in her presentation was University of Massachusetts law professor Hillary Farber: “Regardless of the steps one takes to protect his privacy at ground level, there is no hiding from an unmanned aircraft hovering overhead. An unmanned aerial vehicle will be able to see, capture and store data around the curtilage of one’s home and anywhere else it can gain an aerial perspective.”