Drones: An Aerial View of the Future of Unmanned Aircraft Systems

Written By: Victoria Burnett

Member, American Journal of Trial Advocacy

History

Unmanned Aircraft Systems (UAS), commonly known as “drones,” are increasingly prevalent throughout the world.  Although drones are subject to a few basic regulations by the Federal Aviation Administration, the law on drones is largely undeveloped.  With few civilian or commercial collisions[1] between drones and aircrafts, there have not been any documented National Transportation Safety Board (NTSB) investigations that would lead to more strenuous UAS regulations.[2]  This seems to follow the history of aviation as well.  For instance, there were few flight regulations until crashes started occurring and public safety was potentially at risk.  From flights dating back to the Wright Brothers in 1903, to World War I, there were several decades spent learning about flight safety through unfortunate accidents.  This eventually led to the first passenger airliner being released by Boeing and the implementation of the Federal Aviation Administration (FAA).[3]  Once public safety was compromised, the FAA started invoking higher standards of regulation.  Thus, jet engine manufacturers had incentive to test their engines to ensure safety in the event of an accident.

Some engine manufacturers go as far as to simulate a bird strike when testing the quality of engines. [4]  To do this, they simulate this scenario, which is likely to occur on takeoff when the plane is still close to the ground in which a flock of birds fly into the plane’s engine.[5] They do this by revving the engine to takeoff speed and then throwing in (previously) dead chickens.[6] They use the simulations to ensure the engine can continue running effectively after an entire bird has completely passed through the engine and provides information to the FAA for future regulation.[7] Unlike birds, a drone is made of significantly stronger and more durable material. What would happen if a drone collided with a jet engine?[8]  This means it is unknown exactly how much damage an UAS could do to a commercial jet full of passengers taking off, and this could implicate further UAS regulations.

A commercial plane crash is extremely rare.  The unregulated area of aviation law has now shifted to drones—what some regard as the hobby of flying a toy aircraft, similar to an adult video game in real life, but drones are now being used for a wide variety of commercial operations.

Applicability

Drones have been used for years by our military for a variety of uses, but they are most widely known for their use as a weapon in war.[9]  In fact, since the 9/11 attacks, drones carried out “ over 95% of all non-battlefield targeted killings”.[10]  There are advantages, as well as disadvantages, to the use of drones in such a way.[11]  Drone advantages include making attacking foreign territory safer for U.S. military personnel, allowing for more cost-efficient and accurate results by killing fewer civilians as compared to other weapons of war.[12]  For example, drone strikes have killed more than 500 suspected terrorists following the 9/11 attacks, including a recent story of a drone stopping a Kenyan terrorist in 2013.[13]  On the other hand, the disadvantages include allowing people to operate them from across the world who might not be considered the best operators. For example, there have been at least four hundred crashes involving military drones in Iraq, Afghanistan, and the United States.[14]

In addition to military use, police officers have also used drones for criminal investigations. These drones assist police by performing tasks such as easily documenting an aerial view of a crime scene, decreasing time and helicopter costs in assisting in search-and-rescue procedures, and locating missing children.[15] Some commentators believe it is only a matter of time before these police drones could be equipped with weapons such as tasers or guns.[16]

Drones have become popular with civilians as well. Many people use drones for photography by attaching a camera and hovering about a particular location to get a photograph from an aerial angle. However, there can be negative results if the operator is not careful. For example, SkyPan International Inc. flew a drone in New York City, a prohibited area, many times to get aerial photographs without permission by the FAA.[17]  In an attempt to enforce aviation law, the FAA fined SkyPan $200,000, with an additional agreement to pay $300,000 if the company violates the law in the future.[18]

Additionally, there was a recent case in 2015 involving a man who shot his neighbor’s UAS for flying over his home in Kentucky. [19]  The drone owner filed suit, asking the court to find the shooter as trespassing and sought compensatory damages equivalent to the price of the drone.[20]  The county judge dismissed the case and held the continuous hovering at a low altitude invaded the property owner’s privacy and thus, he had the right to shoot the drone down.[21]  Following that case, the FAA now requires some UASs to be registered, which indicates the legality of drone operations and the illegality in shooting them down, and encourages someone with a drone hovering over his or her home to report it to the local police for a potential trespass claim.[22]  Some states have passed statutes regarding UAS operations, with more statutes likely to come in the future.[23]

On the other hand, there are positive civilian UAS results as well.  Amazon recently filed a patent for an “airborne fulfillment center” or a warehouse in the air.[24]  Yes, in the air.  Similar to a blimp, this “warehouse” would be based in the airspace above a particular location, such as a sports arena, that would enable Amazon customers to purchase goods at any time throughout an event while the warehouse hovered over the arena.[25]  The customers then would receive their goods within minutes by a drone.  In order to avoid collision, Amazon suggests the drones will have communication capabilities to ensure proper airspace routing.[26]  Now keep in mind, this idea was patented in April of 2016 but it is still unknown if the warehouse will actually be created.  Additionally, Dubai’s Roads and Transportation Agency has announced plans to make a single-passenger autonomous drone to “ferry people” from place to place or, in other words, a flying car.[27]  In June of 2016, testing began for a drone that would resemble a taxi in the sky. This drone can run speeds of up to 100 miles per hour and distances up to thirty miles on one charge.[28] Dubai plans to implement this drone for military use by 2020.[29]

Regulation: Operator Licenses and Limitations

If you (or one of your clients) are operating a UAS for fun, there are no certification requirements.[30]  However, the aircraft must be registered and labeled if it weighs more than 0.55 pounds.[31]  The operation must be five miles from an airport, at or below 400 feet, within your line of sight, and in proper airspace. Flying over people, stadiums or events, other aircraft, or emergency response efforts is prohibited.[32]

If you are contemplating flying a drone for commercial purposes, you must hold a commercial UAS license. For a first-time pilot, you must be 16 years of age, proficient in the English language, have a safe physical and mental state, and pass a knowledge exam.[33]  For existing pilots, a pilot certificate, a UAS course completion, and a flight review in the preceding 24 months are required.[34]  The commercial UAS certificate is then valid for two years and the pilot must have their certificate easily accessible when operating the UAS.

There are several limitations for operating an UAS. Some of the most common limitations include the UAS weighing less than fifty-five pounds, a mandatory visual line-of-sight, no operations over any non-participating person or moving vehicle, no operations over 400 feet, at night, or exceeding 100 miles per hour. However, some of these regulations are subject to waivers.  If your client pursues a commercial certificate, they should consult the FAA for further clarification regarding their circumstances before operating the UAS. For further information, consult the FAA website.[35]

 

Victoria Burnett is a private instrument-rated pilot, who recently obtained her commercial UAS certificate. In her spare time, she enjoys flying throughout Florida and Alabama, and she hopes to pursue a career in aviation law upon graduating law school.


[1] See Stephen Jones, Drone Crashes into Boeing 737 Jet Plane Coming Into Land at Mozambique Airport, Mirror (Jan. 6, 2017), http://www.mirror.co.uk/news/world-news/drone-crashes-boeing-737-jet-9574073 for photos of a drone after it collided with a Boeing 737.  No one on the plane was injured, and it was able to make a safe landing; see also Chris Hughes and Ruth Halkon, Drone Crashes into British Airways passenger jet as it comes in to land at Heathrow Airport, Mirror (Apr. 18, 2016), http://www.mirror.co.uk/news/uk-news/drone-crashes-british-airways-passenger-7776727 (describing a suspected drone collision with a commercial passenger plane).

[2] Jack Nicas, NTSB Rules Drones are Aircraft, Subject to FAA Rules, The Wall Street Journal (Nov. 18, 2014), https://www.wsj.com/articles/ntsb-rules-drones-are-aircraft-and-subject-to-faa-rules-1416326767.

[3]History of Aviation – First Flights, AvJobs (Feb. 1, 2017), http://www.avjobs.com/history/.

[4] Alexander George, Watch GE Test it’s Jet Engines By Putting Them Through Hell, Wired (Nov. 27, 2014), https://www.wired.com/2014/11/how-ge-tests-jet-engines/.

[5] Id.

[6] Id.

[7] Id.

[8] James Vincent, The UK Government is Crashing Drones into Airplanes to See What Happens, The Verge (Oct. 18, 2016), http://www.theverge.com/2016/10/18/13314916/drone-crash-airplane-test-uk-dangers.

[9]Background of the Issue, Procon (Sept. 14, 2016), http://drones.procon.org/view.resource.php?resourceID=006599.

[10] Id.

[11]Should the United States Continue Its Use of Drone Strikes Abroad?, Procon (Sep. 19, 2016), http://drones.procon.org (discussing the advantages and disadvantages of drones).

[12] Id.

[13] Jim Michaels, Drones: The Face of the War on Terror, USA Today (March 19, 2015), http://www.usatoday.com/story/news/world/2015/03/19/drones-pakistan-iraq/25033955/.

[14]418 US Military Drones Crashed Since 2001, Military (June 21. 2014), http://www.military.com/daily-news/2014/06/21/418-us-military-drones-crashed-since-2001.html.

[15]The Use of Drones in Law Enforcement and Private Investigations, eInvestigator (Feb. 1, 2017), https://www.einvestigator.com/the-use-of-drones-in-law-enforcement-and-private-investigation/.

[16] Cyrus Farivar, Man who Built Gun Drone, FlamethrowerDdrone Argues FAA can’t Regulate Him, ARS Technica (June 9, 2016), https://arstechnica.com/tech-policy/2016/06/man-who-built-gun-drone-flamethrower-drone-argues-faa-cant-regulate-him/ (discussing a flame-throwing drone and the FAA’s implied regulation of the drone even though it was unclear whether the drone actually violated the law).

[17] Laura Brown, Press Release – FAA and Skypan Int’l Inc., Reach Agreement on Unmanned Aircraft Enforcement Cases, Fed. Aviation Admin. (Jan. 17, 2017), https://www.faa.gov/news/press_releases/news_story.cfm?newsId=21374; Bart Jansen, Drone-photography company fined $200,000 by FAA, USA Today (Jan. 17, 2017), http://www.usatoday.com/story/news/2017/01/17/faa-drone-skypan/96671342/.

[18] Id.

[19] Cyrus Farivar, After Neighbor Shot Down His Drone, Kentucky Man Files Federal Lawsuit,  Ars Technica (Jan. 6, 2016), https://arstechnica.com/tech-policy/2016/01/man-whose-drone-was-shot-down-sues-shotgun-wielding-neighbor-for-1500.

[20] Id.

[21] Elisha Feildstadt, Case Dismissed Against William Merideth, Kentucky Man Arrested for Shooting Down Drone, NBC News (Oct. 27, 2015), http://www.nbcnews.com/news/us-news/case-dismissed-against-william-h-merideth-kentucky-man-arrested-shooting-n452281.

[22] Id.

[23] See, e.g., Nev. Rev. Stat. Ann. § 493.103 (West 2015); Alaska Stat. Ann. § 18.65.900 (West 2014) (defining unmanned aircrafts and pilots in § 18.65.909); La. Stat. Ann. § 14.284 (West 2016) (adding unmanned aircrafts to peeping tom criminal penalties).

[24] Arjun Kharpal, Amazon Wins Patent for a Flying Warehouse That Will Deploy Drones to Deliver Parcels in Minutes, CNBC Special Report (Dec. 30, 2016), http://www.cnbc.com/2016/12/29/amazon-flying-warehouse-deploy-delivery-drones-patent.html.

[25] Id.

[26] Id.

[27] Jamie Condliffe, Who’s Brave Enough to Be a Test Pilot for Flying Cars?, MIT Technology Review (Feb. 16, 2017), https://www.technologyreview.com/s/603679/whos-brave-enough-to-be-a-test-pilot-for-flying-cars.

[28] Dubai announces passenger drone plans, BBC News (Feb. 14, 2017), http://www.bbc.com/news/technology-38967235.

[29] Id.

[30] Fly for Fun, Fed. Aviation Admin. (Dec. 14, 2016), https://www.faa.gov/uas/getting_started/fly_for_fun/.

[31] Id.

[32] Id.

[33] See Getting Started, Fed. Aviation Admin. (Dec. 14, 2016), https://www.faa.gov/uas/getting_started/ (stating pilot license requirements); Becoming a Pilot, Fed. Aviation Admin. (Aug. 29, 2016), https://www.faa.gov/uas/getting_started/fly_for_work_business/becoming_a_pilot/ (stating pilot license requirements).

[34] Id.

[35] FAA News, Fed. Aviation Admin. (June 21, 2016), https://www.faa.gov/news/press_releases/news_story.cfm?newsId=21374.

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