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Regulation of UAVs in the United States

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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[citation needed] 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 2015 the FAA announced that all UAVs weighing more than 250 grams flown for any purpose must be registered with the FAA.[4]

History of Regulation

2012 and Prior

On September 16, 2005, the FAA released memorandum AFS-400 UAS Policy 05-01 as a guideline to the usage of UAS in the U.S. National Airspace System (NAS).[5] On February 6, 2007, the FAA released a policy document indicating that UAVs are recognized by the definition of aircraft.[6] Soon followed on February 13, a Policy Statement concerning the operation of drones was issued and clarified the distinction between a UAV and a model aircraft.[6]

The FAA Modernization and Reform Act of 2012[7] 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.[8] The FAA will appeal the judgment.[9] Texas EquuSearch, which performs volunteer search and rescue operations, was also challenging FAA rules in 2014.[10]

2013 - 2015

As of August 2013, commercial unmanned aerial system[11] (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.[12] COAs have been granted for both land and shipborne operations.[13] In 2014, the FAA approved at least ten applications from specific companies for commercial use of drones, including movie-makers and surveyors.[14][15]

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.[16]

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.[17] Nearly all enacted laws require a probable cause warrant to be issued before the use of a UA system for surveillance purposes is authorized.[18]

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.[19] On November 18, 2014, however, regarding the FAA v. Piker case, the National Transportation Safety Board (NTSB) upheld FAA's authority over enforcement of the operation of UAS or model aircraft by affirming that since "unmanned aircraft systems (UAS) meet the legal definition of 'aircraft'," the operation of which are thus subject to civil penalties.[20][21]

2015 - Present

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.[22]

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 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 weighing 0.25-25kg (0.55-55 lb) needed to be registered no later than February 19, 2016.[23] The FAA's registration portal for drones can be accessed here.

Notable requirements of the 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.[24]
  • 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.[25]

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.[26]

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.[27]

In February 2016, the FAA established a committee to develop guidelines for regulating safe UAV flight over populated areas,[28] to the end of allowing commercial drone operation,[29] in response to requests from companies involved in commercial drone development such as Amazon and Google.[30] In addition, during the summer of the same year, the Federal Aviation Administration (FAA) and Office of the Secretary of Transportation (OST), Department of Transportation (DOT) released Rule Part 107, finalizing the regulation regarding the use of commercial UAS.[31][32]

On May 19, 2017, the United States Court of Appeals for the District of Columbia Circuit, in ruling on Taylor v. Huerta [33] reversed the Dec. 2015 UAV registration rule, commenting that "the FAA may not promulgate any rule or regulation regarding a model aircraft." Specifically, the FAA’s Registration Rule for model aircraft (a/k/a drones) violates Section 336 of the FAA Modernization and Reform Act, and the FAA's Registration Rule to the extent it applied to model aircraft was vacated. The FAA began the process of refunding the registration fees.

On December 12, 2017, President Donald Trump signed into law the immediately-effective National Defense Authorization Act for Fiscal Year 2018, reinstating the FAA’s drone registration requirement. [34]

On May 9, 2018, the U.S. Transportation Secretary Elaine L. Chao announced the selection of local governments from 10 states to participate in the UAS Integration Pilot Program.[35] The City of San Diego is one of the participant selected from California with a primary project goal focusing on commercial delivery and border protection.[36]

On September 20 2018, State Farm Insurance, in partnership with the Virginia Tech Mid-Atlantic Aviation Partnership and FAA Integration Pilot Program, became the first in the United States to fly a UAV 'Beyond-Visual-Line-Of-Sight' (BVLOS) and over people under an FAA Part 107 Waiver. The flight was made at the Virginia Tech's Kentland Farms outside the Blacksburg VA campus with an SenseFly eBee vehicle, Pilot-In-Command was Christian Kang, a State Farm Weather Catastrophe Claims Services employee (Part 107 & 61 pilot). [37]

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."[38] 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."[39]: 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.[39]: 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:[39]: 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:[39]: 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.[40] In 2015, Virginia passed legislation that a drone may only be used in law enforcement if a warrant has been issued; excluding emergencies.[41] 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.[42] Other states that have drone regulation are Florida, Idaho, Illinois, Indiana, Iowa, Montana, Oregon, Tennessee, Texas, and Wisconsin.[43]

The first landmark court case on state and municipal drone regulation was Singer v. City of Newton, No. 17-10071-WGY (D. Mass. Sept. 21, 2017). Dr. Michael Singer, a physician, technology advocate, and FAA-certificated drone operator, sued the City of Newton, Massachusetts challenging four provisions in the city's recently enacted drone ordinance.[44] These provisions required drone operators to register with the Newton city clerk; prohibited drone flights over the city without prior permission of all landowners below; and prohibited beyond-visual-line-of-sight (BVLOS) operations.[45] Singer, who represented himself in court, argued that these provisions were preempted by the FAA Modernization and Reform Act of 2012 and the Federal Aviation Act of 1958 (as recodified). U.S. District Judge William G. Young agreed, striking down the challenged parts of the ordinance due to conflict preemption.[46][47] The City of Newton appealed the decision to the United States Court of Appeals for the First Circuit, but later withdrew its appeal. Singer v. Newton is widely regarded as the first court case to examine the intersection of federal and state powers over drone operations.[48]

Anti-UAV legislation

Some locations, such as Charlottesville, Virginia, Iowa City, Iowa and St. Bonifacius, Minnesota have passed legislation that limits use of UAVs.[49][50][51] 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.[52]

In 2016, the Connecticut House of Representatives considered legislation to impose restrictions on drone weaponization. The legislation came after a man named Austin Haughwout, then an engineering student at Central Connecticut State University (CCSU), posted a video on YouTube showing a drone carrying a semi-automatic handgun, which he had assembled, and which was seen to fire the gun several times.[53][54][55]

Prosecutions

In 2013, a UAV flying over Manhattan collided with several buildings and crashed onto the pavement.[56] It was reported that a man had been arrested days after the incident and that he had been charged with reckless endangerment.[57] He was identified because he was seen in the video recorded by the drone.[57] The Federal Aviation Administration fined the man $2,200.[58] 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".[58] This was the first FAA attempt to penalise a non-commercial flight.[58]

In 2015, a drone operated 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.[59]

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".[60] 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.[61]

References

  1. ^ a b https://web.archive.org/web/20140610135230/http://www.faa.gov/about/initiatives/uas/reg/media/frnotice_uas.pdf. Archived from the original (PDF) on June 10, 2014. Retrieved March 14, 2015. {{cite web}}: Missing or empty |title= (help); Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  2. ^ "Model "Academy of Model Aeronautics National Model Aircraft Safety Code"" (PDF). January 1, 2014.
  3. ^ "FAA: Certificate of Authorization or Waiver (COA)".
  4. ^ a b Joseph Steinberg (December 16, 2015). "Drones in America Must Now Be Registered. Here's What You Need to Know". Inc. Retrieved December 16, 2015.
  5. ^ Federal Aviation Administration, Unmanned Aircraft Systems Operations in the U.S. National Airspace System—Interim Operational Approval Guidance (AFS-400 UAS Policy 05-01) (2005).
  6. ^ a b Final Report (September 2009). Unmanned Aircraft System Regulation Review. DOT/FAA/AR-09/7
  7. ^ "FAA MODERNIZATION AND REFORM ACT OF 2012" (PDF). Gpo.gov. Retrieved January 8, 2015.
  8. ^ Robillard, Kevin (March 6, 2014). "Judge strikes down small drones ban". www.politico.com. Politico LLC. Retrieved March 6, 2014.
  9. ^ Krasny, Ros; Maler, Sandra (March 7, 2014). "U.S. FAA will appeal ruling on commercial drone use". www.reuters.com. Thomson Reuters. Retrieved March 7, 2014.
  10. ^ "Texas EquuSearch petitions the court to reverse FAA's ban on volunteer UAS Search & Rescue operations - AMA Government Relations Blog". Amablog.modelaircraft.org. Retrieved January 8, 2015.
  11. ^ Ahlers, Mike. November 7, 2013. FAA takes initial steps to introduce private drones in U.S. skies, CNN. Retrieved December 3, 2013.
  12. ^ "Unmanned aircraft to assist oil spill response". Aeryon Labs.
  13. ^ "Aeryon Scout™ Micro-UAV Provides Aerial Perspective for Ship-Based Wildlife Research Project in Bering Sea".
  14. ^ Jansen, Bart (December 10, 2014). "FAA lets 4 companies fly commercial drones". USA Today. Retrieved January 8, 2015.
  15. ^ Jansen, Bart (September 25, 2014). "FAA approves drones for moviemaking". USA Today. Retrieved January 8, 2015.
  16. ^ "FAA Selects Six Sites for Unmanned Aircraft Research". Taa.gov. Retrieved January 8, 2015.
  17. ^ "Current Unmanned Aircraft State Law Landscape". Ncsl.org. Retrieved January 8, 2015.
  18. ^ "Status of 2014 Domestic Drone Legislation in the States". American Civil Liberties Union. Retrieved January 8, 2015.
  19. ^ Fung, Brian (May 7, 2014). "Major news outlets call the FAA's drone restrictions a violation of the First Amendment". The Washington Post. Archived from the original on May 8, 2014. {{cite news}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help) FAA v. Pirker brief is posted here.
  20. ^ "Press Release – FAA Statement on NTSB Decision in Huerta v. Pirker". www.faa.gov. Retrieved March 5, 2019.
  21. ^ Elias, Bart. January 27, 2016. "Unmanned Aircraft Operations in Domestic Airspace: U.S. Policy Perspectives and the Regulatory Landscape." Congressional Research Service.
  22. ^ "CNN cleared to test drones for reporting". CNN Money. Retrieved January 12, 2015.
  23. ^ Williams, Thomas E. (December 17, 2015). "That Drone in Your Holiday Stocking Must Now Be Registered With FAA". Neal, Gerber & Eisenberg LLP. Retrieved December 17, 2015. {{cite journal}}: Cite journal requires |journal= (help)
  24. ^ Ritt, Steven L. (December 15, 2015). "Drones: Recreational/Hobby Owners Web-based Registration Process". The National Law Review. Michael Best & Friedrich LLP. Retrieved December 17, 2015.
  25. ^ Smith, Brian D; Schenendorf, Jack L; Kiehl, Stephen (December 16, 2015). "Looking Forward After the FAA's Drone Registration Regulation". Covington & Burling LLP. Retrieved December 17, 2015.
  26. ^ Williams, Thomas E. (December 17, 2015). "That Drone in Your Holiday Stocking Must Now Be Registered With FAA". The National Law Review. Neal, Gerber & Eisenberg LLP. Retrieved December 17, 2015.
  27. ^ Lawyer gets FAA to approve paper airplane
  28. ^ "Press Release – FAA Unveils Effort to Expand the Safe Integration of Unmanned Aircraft". www.faa.gov. Retrieved February 27, 2016.
  29. ^ "FAA begins exploring how to allow drone flights over crowded cities". The Verge. Retrieved February 27, 2016.
  30. ^ "What's really standing in the way of drone delivery?". The Verge. Retrieved February 27, 2016.
  31. ^ "Press Release – DOT and FAA Finalize Rules for Small Unmanned Aircraft Systems". www.faa.gov. Retrieved March 1, 2019. {{cite web}}: Cite has empty unknown parameter: |dead-url= (help)
  32. ^ Operation and Certification of Small Unmanned Aircraft Systems. (PDF). Federal Aviation Administration, Office of the Secretary of Transportation, Department of Transportation.
  33. ^ "Taylor v. Huerta". Recode. Retrieved December 12, 2017.
  34. ^ "Trump signs bill reinstating the FAA's drone registration requirement". TechCrunch. Retrieved December 12, 2017.
  35. ^ "Press Release – U.S.Transportation Secretary Elaine L. Chao Announces Unmanned Aircraft Systems Integration Pilot Program Selectees". www.faa.gov. Retrieved March 1, 2019. {{cite web}}: Cite has empty unknown parameter: |dead-url= (help)
  36. ^ "Integration Pilot Program Lead Participants". www.faa.gov. Retrieved March 1, 2019. {{cite web}}: Cite has empty unknown parameter: |dead-url= (help)
  37. ^ State Farm NewsRoom. "State Farm Granted Florence Response FAA Drone-Use Waiver". State Farm Insurance. {{cite web}}: |author= has generic name (help)
  38. ^ 49 U.S. Code § 40103
  39. ^ a b c d "State and Local Regulation of Unmanned Aircraft System s (UAS) Fact Sheet" (PDF). Federal Aviation Administration, Office of the Chief Counsel. December 17, 2015. Archived from the original (PDF) on February 3, 2016. Retrieved February 4, 2016. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
  40. ^ Segar, Mike. "California Senate approves measure banning warrantless drone surveillance". Reuters. Retrieved September 11, 2014.
  41. ^ "Virginia HB 2125".
  42. ^ "New Jersey A1039".
  43. ^ "Drone Privacy Bill". American Civil Liberties Union.
  44. ^ Goglia, John. "Federal Judge Overturns City Drone Ordinance In First Ruling Of Its Kind". Forbes. Retrieved January 1, 2018.
  45. ^ Note, Recent Case: Massachusetts District Court Finds Portion of Local Drone Ordinance Preempted by FAA Regulation, 131 Harv. L. Rev. 2057 (2018)..
  46. ^ Gershman, Jacob (September 22, 2017). "Judge Affirms Limited Power of States and Cities Over Drones". Wall Street Journal. ISSN 0099-9660. Retrieved January 1, 2018.
  47. ^ Singer v. City of Newton, 284 F. Supp. 3d 125 (D. Mass. Sept. 21, 2017).
  48. ^ "Federal court finds that federal law preempts local drone ordinance | Insights | DLA Piper Global Law Firm". DLA Piper. Retrieved January 1, 2018.
  49. ^ Koebler, Jason (February 5, 2013). "City in Virginia Becomes First to Pass Anti-Drone Legislation". U.S. News & World Report. Retrieved December 3, 2013.
  50. ^ "NO DRONES: Iowa City Passes Uncommon Ordinance". WHO-DT. June 19, 2013. Retrieved December 3, 2013.
  51. ^ Meersman, Tom (April 6, 2013). "St. Bonifacius says no to drones". Star Tribune. Retrieved December 3, 2013.
  52. ^ Kenyon, Jim (October 2, 2013). "Drone free zone put on hold in Syracuse". WTVH. Retrieved December 3, 2013.
  53. ^ "Teen's video of handgun-toting drone prompts federal investigation". The Guardian. July 21, 2015. {{cite news}}: Unknown parameter |authors= ignored (help)
  54. ^ "Teenager's video of gun-firing drone spurs investigation". Cybercast News Service. July 21, 2015. {{cite news}}: Unknown parameter |authors= ignored (help)
  55. ^ Ernst, Douglas (July 21, 2015). "'Flying Gun' drone investigated by FAA after student's YouTube video goes viral". The Washington Times.
  56. ^ Hoffer, Jim (October 3, 2013). "EXCLUSIVE: Small drone crash lands in Manhattan". ABC News. Retrieved October 5, 2013.
  57. ^ a b Hoffer, Jim (October 18, 2013). "EXCLUSIVE: Brooklyn man arrested for flying drone over Manhattan". ABC News. Retrieved October 19, 2013.
  58. ^ a b c Levin, Alan (May 3, 2014). "Drone Operator Fined After Almost Hitting NYC Pedestrian". bloomberg.com. Retrieved May 5, 2014.
  59. ^ "Civilian Drone Use".
  60. ^ Levin, Alan; Laura LItvan (May 12, 2014). "Filmmakers to Farmers Seeking Drone Bonanza in Washington". Bloomberg Businessweek. Retrieved May 17, 2014.
  61. ^ Giardina, Carolyn (June 2, 2014). "FAA to Consider Hollywood Request for Exemption to Use Drones for Filming". Hollywood Reporter. Retrieved June 9, 2014.
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