Send in the Drones—Flying in the Face of Danger?

Unmanned Aircraft Systems (UAS—the current, official FAA designation), Unmanned Aerial Vehicles (UAVs), or drones. All describe remote-controlled aerial vehicles of various configurations and various sizes. Current FAA regulations and FAA guidance prohibit the commercial use of UASs without a FAA Special Airworthiness Certificate–Experimental Category (SAC-EC). Considerable controversy surrounds the use of drones and privacy, financial liability, regulatory authority, and Constitutional issues remain.

The following is an adapted and partial  excerpt from a presentation given to the Pennsylvania NewsMedia Association in July 2013 (see related news story).

Key Issues Related to Drones

  • Questions and potential liability regarding private and commercial use of drones
  • Fluid federal, state, local, and administrative regulations and guidelines regarding drones
  • Invasion of privacy, nuisance (public and private) issues from drones
  • Damages and liability from errant drones (revival of new agency law)
  • Regulatory penalties from misuse of drones (FAA, FCC)

Drones Defined—Unmanned Aircraft Systems(UAS), Unmanned Aircraft (UA), Unmanned Aerial Vehicles (UAV)

Unmanned Aircraft Systems (UAS—the current, official FAA designation), Unmanned Aerial Vehicles (UAVs), or drones. All describe remote-controlled aerial vehicles of various configurations (traditional airplane-like vehicles, helicopter-like vehicles, and balloon-like vehicles) and various sizes—from insect-sized devices to large aircraft. Costs vary from $30 to millions of dollars each. Increasingly, even low-cost devices ($175) carry capabilities to record high-definition video, ultra-high-definition photographs, and audio—including ability to beam video in real-time. Drones are used for everything from military applications, border security, law enforcement, recreation, real estate marketing, enforcement of environmental regulations by activists, and farming!

FAA Guidance

Current FAA regulations and FAA guidance prohibit the commercial use of UASs without a FAA Special Airworthiness Certificate–Experimental Category (SAC-EC). But even with an experimental certificate, a commercial entity still apparently cannot currently use a UASs for “compensation or hire.” Note, the commercial-use Rule differs from both

  1. a public agency who may seek a FAA Certificate of Authorization or Waiver (COA) and
  2. from prior, and expressly distinguished, guidance on strictly recreational use of model aircraft (the latter is the source of the so-called 400′ ceiling and visual-line-of-site supposed “rules” often wrongly cited by commercial-use lobbyists).

The FAA published interim official guidance on commercial use of UASs in 2007. See http://www.faa.gov/about/office_org/headquarters_offices/ato/service_units/systemops/aaim/organizations/uas/coa/faq/media/frnotice_uas.pdf . Those guidelines plainly define the FAA’s view on drone use and carefully distinguish between

  1. public uses (police and government,
  2. commercial uses, and
  3. hobbyist uses.

In 2012, Congress passed the FAA Air Transportation Modernization and Safety Improvement Act of 2012. The Act includes sections (e.g., 320 and 607) requiring the FAA to develop rules for more widespread use of drones by September 30, 2015.

State and Local Initiatives on Drones

At least six states now have drone regulation laws. Similar to the dichotomy at the federal level, the statutes fall into two groups:

  1. those regulating public-entity use (“police or law enforcement”) (recent Florida and Oregon laws) and
  2. those broadly regulating almost all uses by private, commercial, or government entities.

Texas recently, and controversially, passed broadly defined regulation of drones.

Pennsylvania currently considers (Summer 2013) two laws following this pattern:

  • one regulating public use (SB 875) and
  • one regulating private use until 2015 (HB 452).

Conoy Township, Lancaster, Pennsylvania, recently passed a local ordinance regulating drones as a nuisance. The text reads:

No person shall continue, maintain, establish or carry on any of the following prohibited acts or activities on any public or private property in the Township of Conoy, Lancaster County, Pennsylvania (the “Township”) if the same are determined to be and constitute nuisances in fact: …

(f) The operation of remote controlled or other non-tethered aircraft over property not owned by the operator and without the permission of the property owner.

The Forgotten FCC Angle?

While most turn to FAA authority for regulation of drones, all forget a second, and probably more important, federal regulatory authority in this arena—the Federal Communications Commission (FCC).

Because drones, by definition, are unmanned vehicles and usually require some form of remote control via radio waves (although semi-autonomous and autonomous drones are possible), the FCC has regulatory authority. In fact, the FCC maintains a Radio Control (R/C) Radio Service specifically for this purpose—47 C.F.R. §§ 95.201–225. Under FCC Rules, the following are appear prohibited:

  • two-way communications,
  • transmitting data, and
  • receiving payment for operation (questionable).

Potential Vectors for Liability for Drones

A plethora of issues and potential liability arise from drones including:

  • privacy (vs. activism, watch-dog groups, or Press privileges?),
  • nuisance,
  • trespass,
  • damages,
  • agency law (potential, novel new area),
  • preemption (preemption mini-review: 1. express, 2. implied—2.a. field or 2.b. conflict), and
  • federal and state constitutional issues (e.g., First Amendment (Press/activism), Fourth Amendment influences [Kyllo v. United States, 533 U.S. 27 (2001) (technology generally available); United States v. Jones, 132 S.Ct. 945 (2012) (GPS, trespass theory)), Tenth Amendment (conflict between traditional state roles and inherently limited federal regulation).

Sample Readings and Citations