By late January, the New Year’s resolutions we had planned to start strong are now either our every-day motivation or a lost cause. Here, at Bryan Cave Leighton Paisner LLP (“BCLP”), the Unmanned Aerial Vehicle Team has stuck with its New Year’s resolution to lean into 2019 as a new and exciting year for autonomous aircraft innovations, regulation, and industry growth.
2018: A Year in Review
Autonomous aircraft—also known as Unmanned Aerial Vehicles (“UAVs”), Unmanned Aircraft Systems (“UAS”) or simply “drones”—were the subject of much discussion last year. Last year, Congress passed the Federal Aviation Administration (“FAA”) Reauthorization Act of 2018 (the “Act”), continuing the FAA’s mission to comprehensively integrate drones into the national airspace;1 the FAA initiated a prototype Low Altitude Authorization and Notification Capability program (“LAANC”) that provides real-time airspace authorizations for drones near airports;2 and the FAA launched the UAS Integration Pilot Program (“UAS IPP”) to allow states to test drone flights in various ways otherwise prohibited by the FAA’s Part 107 rules—or the rules governing the operation of drones weighing less than 55 pounds.3
2019: Off to a Strong Start
This year, we may expect not only continued developments in drone law and regulation in response to a growing commercial drone market, but also more serious developments in response to evolving security concerns.
The New Year started strong with two pre-filed bills by Representative Clay Yarborough (FL) and Senator Darryl Rouson (FL), seeking access to drones for surveillance purposes on behalf of state law enforcement. 4 And, just last week, the Trump Administration’s Transportation Secretary, Elaine Chao, proposed new rules for the FAA’s integration of drones into the national airspace.5 “Drones . . . are well on their way to mainstream deployment,” Ms. Chao said during her speech in Washington, D.C.6 “[T]o reap the considerable economic benefits of this growing industry,” she said, “we’d like to share with you . . . new [Department of Transportation (“DOT”)] initiatives to encourage the safe testing and deployment of drones.”7 The first, a Notice of Proposed Rulemaking, presents rules allowing drones to operate over populated areas or to fly at night without needing special waivers from the FAA; such operation is conditioned on the drone operator meeting certain criteria for training, testing, and anti-collision lighting.8 Currently, night waivers are the most commonly granted waiver, often for commercial operators whose drones have thermal inspection capabilities.9
Flying over populated areas is another well sought-after waiver, as the ability to fly drones over people can be helpful for crowd control, newsgathering, and infrastructure inspections.10 Yet, flights over people can be risky, as seen last year when a drone inspecting the famously sinking Millennium Tower in San Francisco malfunctioned and plunged at pedestrians walking below.11 Thankfully, no pedestrians were struck. The DOT’s proposed rules are designed to minimize risk to people on the ground by restricting the weight of eligible drones and requiring operators to design their drones in a way that will prevent serious injury to people.12
Ms. Chao also announced that the FAA will seek public comments on drone security issues and plans to further develop the UAS Traffic Management Pilot Project—a parallel to the FAA’s traditional air traffic management system but for drones—by having awarded new government contracts to vendors to continue the project.13
Such flurried activity in drone law and regulation is likely an attempt by policymakers to provide a more robust regulatory framework for the nearly 1.3 million drones and 116,000 operators registered in the United States.14 Thus far, a comprehensive and effective regulatory framework appears to be a top priority for legislators in 2019.
2019: What’s Next?
The DOT’s proposed rules may benefit companies like Amazon and Alphabet, Inc.—who are readying drone fleets for package deliveries once given the government clearance.15 Drones already provide tremendous benefits in areas such as law enforcement surveillance, disaster and humanitarian aid, scientific research, infrastructure maintenance, and news broadcasting.16 Recent developments in drone technology present further opportunities for a commercialized industry—whether seen in the first successful, test delivery of a kidney transplant or incredibly precise aerial assessments of construction projects.17 Companies are working to commercialize and deploy drones across various sectors and markets—with many start-ups dominating the field, Hyundai Motor Company announcing a new partnership in the field, and Boeing scheduling the first test flight of its solar-powered drone.18
Continued investment in and protection of the commercial drone market will likely maintain the industry’s upward trajectory. A report from Goldman Sachs predicts that the total spending on drones worldwide will be over $100 billion by the year 2020.19 National defense remains the biggest spender in the drone market, with consumers coming in second.20 Vendors in the construction and agricultural markets are predicted to experience the largest growth due to specialty drone use.21 The global “counter-UAV market,” which references the industry that develops drone technology countermeasures, also expects growth estimated to reach $1.85 billion by 2024.22
The FAA has only begun to revamp rules related to drone operations, still having left untouched the “beyond visual line of sight” waiver companies would often seek to expand their commercial operations.23 The agency also plans to propose another set of rules in May 2019 concerning the remote identification of drones.24 The rules would require small drones to broadcast their identity and position so authorities may track them; such regulations would lessen security concerns and likely reduce the need for drone countermeasures, if the tracking technology works as it should. 25 One of the remote identification systems being vetted is called “AUDS.”26 It could take longer than a year to finalize the proposed rules, meaning flights over populated areas probably won’t be permitted until 2020 or later.27
Meanwhile, the growing number of unauthorized drone flights in controlled airspace has prompted conversations about national security concerns. Rogue drones have been known to interfere with rescue operations and firefighter efforts.28 Rogue drones have increased at sporting events and concerts, with a man arrested not long ago for using an unauthorized drone to drop political pamphlets over a football stadium full of fans.29 Last month, reports of unauthorized drones at London’s Heathrow and Gatwick airports disrupted air travel, and an unauthorized drone was said to have collided with a Boeing 737 passenger jet over Tijuana, Mexico.30 Just this week, flights were grounded at Newark International Airport after a pilot told air traffic control that an unauthorized drone came within thirty feet of his aircraft.31 According to the FAA, over 6,000 drones have been spotted mid-flight by airline personnel, some flying just a few feet away from commercial aircraft.32 Such sightings provide insight on the serious risk of drone collision. A 2017 FAA study concluded that a drone collision could cause significant damage to the surface areas of commercial aircraft.33
This year, the FAA will likely act under its authority granted in the FAA Reauthorization Act of 2018 to combat dangerous drone use. On October 5, 2018, President Trump signed the Act, building on the groundwork laid by the FAA Reauthorization Act of 2012.34 The Act requires the FAA update many of its existing programs and establish new ones, including (1) a process for accepting risk-based, consensus safety standards related to design, production, and modification of small drones; (2) authorizations for government agencies seeking to operate drones for police and firefighting purposes; (3) special permits for drones to operate beyond the visual line of sight; and (4) parameters for allowing commercial drone delivery packages.35 The Act also requires the FAA to submit research reports to Congress on pressing issues like drone data privacy and security.36
Among the previously mentioned provisions, the Act provides new authority for the Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) to “mitigate the threat” that drones pose “to the security of a covered facility.”37 Such mitigating actions allow for warnings to drone operators, jamming signals, tracking and seizing drones, and using “reasonable force, if necessary to destroy the UAS.”38 The authority comes in response to the increasing use of drones by terrorist and criminal groups for nefarious purposes such as cross-border smuggling operations.39 Controversy remains about the Act as it gives the DHS and DOJ wide discretion to define when a drone poses a “threat” and when it threatens “a covered facility,” without prior judicial authorization.40 If these agencies determine that a drone meets these two definitions, they are allowed to track, seize, or destroy the drone. In 2019, we expect DHS and DOJ to roll out proposed rules under this new authority. We expect the rules to have a similar effect to those issued by the Department of Defense (“DOD”) and Department of Energy (“DOE”), agencies which received the authority to track and mitigate drone threats under the 2017 and 2018 National Defense Authorization Acts.41
The Commercial Drone Alliance (“the Alliance”), a group that represents members of the commercial drone industry, has warned that any legislation, if not narrowly tailored, could interfere with the commercial development and operation of drones.42 The Alliance issued guiding principles for legislators, including that commercial operators be given sufficient notice of targeted activity and be listed in a government database as “trusted” operators to minimize false identification of threats.43
The Uniform Law Commission (ULC), a group working on a proposed “Tort Law Relating to Drones Act,” also advocates narrowly tailored commercial drone laws, recommending that states draw a line at 200 feet in the sky to establish new aerial trespass zones for property owners.44 Yet, such legislation could inhibit commercial development of drone deliveries by introducing complicated no-fly zones in people’s backyards. In the meantime, states like Pennsylvania have passed laws to protect people’s privacy from drone use.45
Ultimately, 2019 is shaping up to be a landmark year for U.S. drone law and regulation. The UAV Team here at BCLP is monitoring the drone landscape for further development.
The authors would like to recognize summer associate Bernice Diaz for her contribution to this article.