Drones: Coming not-so-soon to a business near you

July 2015 | Around the ABA

Like computers, microwaves, Jeeps and Global Positioning Systems, originally created for military use, drones are expected to inevitably make their way into our everyday life.

Drones are unmanned aircraft flown remotely by a pilot via a ground control system. Technically, anything from a child’s model airplane to the military’s long-endurance reconnaissance vehicles qualify as drones.

Businesses ranging from real estate, agriculture, movie filmmaking and law enforcement to news reporting and delivery of everything from packages to pizzas are clamoring to use drones.  Amazon.com, for example, the largest U.S.-based online seller of products, received patent rights in June 2014 to deliver its products to customers by drones.  

But don’t expect swift adoption of drone technology.

The U.S. has the busiest, most complex airspace in the world, and introducing drones into it is challenging for the Federal Aviation Administration, which is responsible for the airspace. 

The FAA first authorized the use of drones in 1990 and, since then, it has authorized their use in public interest situations such as for disaster relief, search and rescue and law enforcement.  Drones already assist emergency and disaster management programs, national weather service tracking, border and port surveillance, scientific research, traffic management programs and environmental monitoring by NASA.

Commercial drones, however, have been regarded as a potential threat to national airspace. The FAA banned commercial drones in 2007 and only permits aircraft modelers to fly drones within strict guidelines.

In 2014, in Huerta v. Pirker, the National Transportation Safety Board reconfirmed the FAA’s authority when it overturned a federal judge’s dismissal of a $10,000 fine the FAA imposed on Raphael Pirker, a Swiss drone operator, for allegedly flying a drone recklessly during the filming of a commercial for the University of Virginia’s medical school.

In a Sound Advice podcast on drones sponsored by the ABA Section of Litigation, Joseph M. Hanna, partner at Goldberg Segalla in Buffalo, N.Y., explained the current rules and regulations on drones and what to expect in the future.

 “As drones get smaller, cheaper and more capable, their possible applications are endless,” said Hanna. “The legal and regulatory complexity and challenges are likely to be endless, too.”

The Association for Unmanned Vehicle Systems International, Hanna notes, anticipates that drones will be a $13.6 billion market by 2018.

Civilian drone use is only sanctioned in a handful of cases as research or as a hobby, though the latter restricts drones to flights below 400 feet, not near populated areas or outside of the operator’s line of vision, Hanna pointed out.

There was a near-ban on flying drones for commercial purposes until the FAA proposed a simple approval process in February for operators of small commercial drones, those weighing no more than 55 pounds. 

Operators are required to pass a written exam on FAA rules to obtain a certificate from the agency for drone flying, and to comply with certain safety requirements. The test must be passed again every two years.

The proposed federal regulations would limit these drone flights to below 500 feet, daytime hours and within sight of the operator.

Hanna said there were 2,000 comments on the proposed regulations as of April. The regulations would not go into effect until 2017.

Many real estate agencies have been pressing to use drones to take pictures and videos of their listings to show clients, which is currently prohibited.

Hanna said that these companies and other commercial operations can apply for a waiver, known as Certificates of Waiver or Authorization, via Section 333 exemption of the FAA Modernization and Reform Act of 2012.  The law allows the FAA to grant case-by-case authorization for certain drones to perform commercial operations.

Of the 600 requests made to date, Hanna said that only 69 have been approved.

Drones raise numerous economic, privacy and civil rights and civil liberties questions, and Hanna said he expects the legal landscape to be full of cases.

Meanwhile, other nations – and some illegal operators – are quickly adopting drone technology.

In Hong Kong, you can order chocolate and have it delivered by drone. And Mexican drug cartels are already moving their product across the border via drones.

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