There are a ton of technical hoops drones have to fly through before they can be truly mainstream. The technology is still developing and advancing on the way to making them into autonomous smart flying machines, but it isn’t only the technical hurdles drone operators have to be looking at. Before they can even prepare their drones for liftoff, they have ensure they are complying with all the legal regulations.
We caught up with Lisa Ellman, partner at Hogan Lovells in Washington, D.C., and co-chair of Hogan Lovells’ Unmanned Aircraft Systems (UAS) Group, to talk about the legal landscape and to get the latest update on the Federal Aviation Administration's (FAA) drone regulations.
InterDrone News: Where do you think the drone industry in the U.S. is headed?
Ellman: I’m a bit biased when I say the drone industry is the most exciting sector of tech, but I’m not biased when I say it’s also one of the fastest-growing industries. It’s estimated that the domestic drone market will grow to US$13.6 billion by 2018 and $82 billion by 2025, while creating more than 100,000 new jobs. The FAA recently estimated that by 2020, 11 million commercial drones will have been sold in the U.S. So technology and the market potential is all there; the industry is just waiting for domestic policy to catch up.
In countries with more permissive commercial regulatory climates, the promise of drones for work is already being demonstrated. In England, a Domino’s pizza has been delivered using a drone; Japan regularly uses drones for crop dusting. With the right policies in place here in the U.S., we’ll see drones routinely assisting farmers, inspecting flare stacks and pipelines in the utilities industry, filming movies for entertainment and gathering video for news, delivering packages, assisting in search-and-rescue and surveying claims for insurance—and those are just a few examples.
The good news is U.S. policy is moving forward. The mandate is there to integrate commercial UASes into the national airspace. The government is very focused on making this happen, but it’s a difficult process with a lot of stakeholders. But the will is there, so we’ll start to see the benefits of drones in relatively short order.
What are the legal concerns around the use of drones?
Drones have incredible benefits, but there are legal and policy concerns with their use; the biggest ones revolve around safety, privacy and security. Thus far, the federal government has been most focused on safety. The FAA has drafted proposed regulations that, when issued, will authorize the broad use of commercial drones in the U.S. while protecting people and property on the ground and keeping drones away from other vehicles in the air. That rule should be final soon.
But while the federal government has been most focused on safety, polls have shown that the American people are actually more concerned about privacy. In one poll, 59% of the American public was extremely or very concerned about privacy: No one wants drones snooping on them in or around their homes.
Policy follows public opinion, and in 2015, 45 states considered 168 pieces of drone legislation, and five states adopted resolutions relating to drones, most of them relating in some way to privacy issues. In just the first quarter of this year, 35 states have considered new drone legislation.
No one denies that there needs to be common-sense policies in place for the safe and responsible use of drones. It’s finding a balance in creating those policies that’s challenging the industry right now. Innovation generally outpaces policy, and the kneejerk reaction to innovation in this instance is restriction.
But a rush to pass legislation without thoughtful input from stakeholders slows the arrival of useful applications that most people also say they’d like to see, like package delivery and disaster response. And in many cases, we can address privacy and safety concerns by just taking a close look at technology-neutral laws already on the books.
For example, it has always been illegal to fly a remote control plane or helicopter too close to emergency personnel or to aircraft. And it’s illegal to spy on someone in their home with a drone, just like it’s illegal to spy on someone using any other technology—there are peeping tom or stalking laws on the books. We don’t need new laws to address those situations; we only need better enforcement of the existing laws.
In cases where existing law doesn’t apply because the technology is so new, we need what I call “Polivation.” Polivation brings policy makers together with innovators to ensure drone policy promotes innovation that gains the public’s trust for the safe and responsible use of UASes.
What's the latest outlook on the FAA regulations, and what do the regulations mean for the drone industry as a whole?
Especially over the last year, the FAA has done a much better job of working with the industry and the public to move the promise of commercial drones in our airspace forward. Remember, this is outside the FAA’s core expertise of manned aviation, so they should be commended for the gains that have been made thus far in the rules they’re drafting and other big efforts, like creating a working drone registration program before last Christmas.
One of the biggest challenges we have with current regulations is that we’re trying to fit new drone technology into an old, manned aviation regulatory structure. A five-pound drone has little to nothing in common with a Cessna or 747. So we constantly have to reconcile drones and their differences in the context of manned aircraft regulations, which requires jumping through legal hoops in order to comply with those regulations. It doesn’t make a whole lot of sense.
But, there’s been progress lately. The FAA rule as proposed would allow drones under 55 pounds to be flown up to 500 feet, within visual line of sight, with a UAS operator's certificate, up to 100 mph, away from people, cities, airports and restricted airspace.
This is a step in the right direction, and the industry was generally pleased with these proposed rules as a first step.
But it’s an iterative process. Right now, the FAA is regulating drones as if they will fall out of the sky or fly away at any time. Regulators don’t care if this happens, so long as there aren’t people around to get hurt on the ground, or the operator can see the drone to make it return to home in case of a flyaway.
Because of this, the proposed rule wouldn’t allow for beyond visual line of sight (BVLOS) flights or flights near people.
But in order for us to be able to take advantage of the many benefits of drones, we need to be able to fly BVLOS and fly over congested areas—neither of which the rule will allow for in the short term. The first version of the rule also wouldn’t allow drones to be used for the “transportation of property for compensation,” better known as package delivery.
We need to make progress here—technology is solving many of the problems we have. Over the next several years, as the technology improves and as the American people are increasingly asking for drones, we will see the rules evolve. Only innovators know what the sense-and-avoid and geofencing and other safety capabilities are, where the technology is going and how we can get there.
Policymakers need to hear from innovators about their progress so the rules can evolve in a timely way to reflect this.
What should every drone operator know about aviation law?
All drone operators should know that, regardless of whether it makes sense or not, federal aviation law applies to them. While most people probably don’t think that a DJI Phantom and a Boeing 747 really have anything in common, from a legal perspective, the FAA treats them both as aircraft. If you’re flying a drone outdoors, you’re technically operating an aircraft in the national airspace system and are subject to certain federal aviation regulations (sometimes abbreviated as “FARs”). If you’re a hobbyist or recreational operator, while there are specific requirements that you need to comply with (for example registering certain drones), simply using common-sense and flying safely will allow you to comply with most of the FARs.