A Fair Approach to Drone Regulation

Drone manufacturers and would-be manufacturers paint a picture of skies filled with drones—unmanned aircraft (and other machines). Media and advocacy groups cite First Amendment rights to the use of drones. Police seek drones despite prohibitions by federal and state constitutions. But, serious issues related to safety (what happens when radio interference causes drone crashes?), liability (who pays when drones cause injuries?), privacy (just because drones can go anywhere, should they?), accountability (how do you find the owner of a drone?), and policy (what are permissible uses of drones?) remain unanswered. Put simply: drones remain controversial.

But some simple changes to current rules and distinctions between commercial and hobbyist uses can go along way in curing the controversies. Rather than prohibiting all commercial uses, the below regulations and rules simply provide a fair and balanced level of responsibility and accountability for commercial users, which are distinguished from traditional, private, hobbyist operators. The suggestions help assure that commercial users operate in a responsible, ethical, and appropriate manner. Hobbyists remain subject to the FAA’s 1981 guidelines.

Distinguish Bona Fide Hobbyist from Commercial Uses

Hobbyists have used model aircraft for decades (the FAA provided guidelines for hobbyist use in 1981). These ancillary uses and the current guidelines for hobbyists seem to work fairly well. By definition, hobbyist uses MUST be away from populated areas, away from noise sensitive areas, and away from airports and other aircraft.

Commercial users, however, threaten the long-time hobby. (In fact, some commercial users seem to evade even the simple and sensible guidelines for hobbyists.) First, commercial uses differ significantly from traditional hobbyists uses. Almost by definition, many commercial uses require operation over populated areas and in noise sensitive areas. Thus, safety issues are enhanced for commercial drone applications because of the proximity to populated areas.

Second, commercial users also re-purpose hobbyist equipment for commercial purposes. This creates a troubling issue: if similar equipment is used, how does one distinguish between true hobbyists and for-profit business use of drones? Are hobbyist-quality devices (by definition used away from populated areas) adequate for commercial uses in populated areas? Who says? Who confirms? What are the standards?

Third, the drone industry itself projects wide-spread commercial uses of drones. Drone advocates paint a picture of hundreds, thousands, or millions of drones in regular use ($89 billion worth). But such uses differ significantly in magnitude from traditional, small-scale hobbyist uses where small numbers of hobbyists fly small aircraft in non-populated areas.

Thus,different rules should  reasonably apply to commercial uses. It is not just the commercial-use at issue but also the intensity and location of the uses. But “commercial purpose” serves as a nice distinguishing point to separate the traditional, small-scale hobbyist uses from the projected, massive-scale commercial uses of drones.

Hobbyist uses can remain as long as those uses are truly hobbyist in nature. Unfortunately, the temptation might be to use hobbyist equipment and rules to avoid responsibility for commercial drone uses. Thus, adequate penalties to deter short-cuts might be necessary. Such penalties would not affect true hobbyists; but offer a formidable penalties to cheaters.

Recognize Radio Spectrum Limits—FCC

I have not seen a single other article identifying the real limitation of the wide-spread uses of drones: limited radio spectrum (although Congress’ direction to the FAA in 2012 hints at coordination with other regulatory agencies). The FCC, not the FAA, regulates radio spectrum. And drones, almost by definition, need some type of radio communications to control the drone. (Yes, semi-autonomous and autonomous drones might exist or be anticipated, but such autonomous drones arguably pose even more issues, not fewer. Arguing autonomous operation as curing the fundamental radio spectrum issues, is merely an out-of-the-frying-pan-and-into-the-fire argument.)

The fact is that radio spectrum is very limited. Furthermore, many “drones” try to use the crowded Part 15 radio spectrum. For hobbyist uses (low magnitude and away from populated areas), this is probably OK. But at the high-volume levels projected by drone advocates and uses over populated areas, the already crowded Part 15 spectrum might be strained.

Furthermore, radio interference in the Part 15 spectrum when applied to drones (some weighing several pounds and with formidable blades) poses a recipe for serious injury—just picture minor interference destabilizing a drone or causing a crash into a playground or a crowded roadway. Part 15 might be OK for incidental uses, but the provisions of Part 15 make interference difficult to enforce—leading to accidents with little ability to hold the wrongdoers accountable for their fair-share.

The point here is simply this: the FCC, not the FAA, has a much larger role in the drone regulation picture than many perceive. As aerial vehicles, drones innately pose more sources of interference, not only with other drones, but with other legitimate and beneficial uses of Part 15 and other radio spectrum: including telephones, WI-FI, monitoring systems, etc. As radio professionals know, elevating otherwise small emitters (as with drones) may increase the total interference pattern by the drone (think of a television antenna or radio antenna where placing at a higher point provides more coverage).

The FCC also maintains a Radio Control Radio Service specifically for remote radio control devices. Commercial drones might be required to use this space rather than Part 15 space. Such requirement would reduce interference with other services and reduce the risks associated with radio. Furthermore, the channel limitations for the R/C Radio Service will indirectly limit drone uses—further reducing the potential for accidents and inappropriate uses. However, conflict between long-time hobbyists and new commercial users seems inevitable.

The Problem: Drones Not Just an FAA Issue

Most discussion of drone regulation centers on the FAA. Some attempt to argue that the FAA has no regulations regarding drones and therefore cannot regulate drones. Such limited analyses place many drone users at risk of expensive and prolonged administrative enforcement actions. While true that no FAA regulations specifically address drones (as of early 2014), the FAA has firmly asserted authority to regulate drone aircraft, and Congress recently passed legislation directing the FAA to develop drone regulations—further confirming the FAA’s role.

Radio interference is the Achilles heel of wide-spread, commercial drone use—not FAA regulations. While some drones have limited autonomous or semi-autonomous operating modes, not all commercial devices have such features (and those features themselves have unclear testing and certification). The point is: widespread use of drones require some type of radio control and radio control radio spectrum remains very limited. FAA regulations must balance bona fide constitutional issues and legitimate needs  with the serious risks posed by drone use (apparently downplayed by drone advocates), privacy issues, and (heretofore not discussed) interference with other radio services.

The radio interference also might not be unintentional. Drones might be cyber-weaponized  for intercepting telephone calls, Internet traffic, WI-FI, and other services. Over very limited areas, some drones might also “jam” legitimate uses. For example, picture un-regulated drone flying pharmacy prescriptions (say a controlled substance) to patients. Again, the points are that these issues are far more complex and go far beyond FAA regulatory authority.

Recognize Privacy and Safety Protections

Widespread uses of drones pose significant privacy and safety issues. As hinted above, drones are not toys. Drones can weigh several pounds, not including payloads. For example, a recent commercial use attempted to deliver six-packs of beer using drones—and imagine such a drone failing and crashing from 400 foot in the air.

Furthermore, insurance coverage for drones remains speculative. Because drones are so new, it remains unclear whether normal business policies cover drone incidents—leaving victims with little recourse and exposing operators to significant personal liability (or exposing those hiring drone operators to significant liability via agency principles). Special drone insurance, much like current aircraft insurance, might be required to provide adequate coverage for commercial operators. Insurance requirements might then shape the future of drone uses.

Privacy-oriented No-Spy-No-Fly Zones (Electronic No Trespassing)

The community has a legitimate concern for privacy and prohibiting aerial trespassing (a coined term). To assure privacy and prohibit aerial trespass, commercial drones must include ability to receive a special no-spy-no-fly signal. Community members can use small beacons to transmit the no-spy-no-fly signal indicating preference for no spying (and the FCC allocated spectrum for this purpose). A commercial drone operator receiving such a signal must comply—or face penalties or private rights-of-action. (Perhaps, the beacon would interrogate the drone and receive a unique identification number to assure enforcement. ) This creates a simple balance between commercial uses and legitimate privacy concerns—community members are not powerless against the privacy invasions posed by drones. The no-spy-no-fly signal stands as the modern equivalent of one posting his land “no trespassing.”

Public-Safety No-Fly Zones

In addition, commercial drones must contain capability to receive a special public-safety, no-fly message that automatically forces the drone to “return to home.” Such capacity reduces interference and obstructions posed by drones during true public emergencies.

The system works by broadcasting a specially encoded electronic message from the emergency area. Upon broadcast, a commercial drone must be able to receive such special messages and must have basic built-in capability to return-to-home.

Obviously, news and media reporting cannot be unreasonably impeded by such capability and proper operation (and penalties for improper public safety uses). But, as with any emergency area, drones whipping around or interfering in emergency operations pose a real risk to the community.

Require Accountability

If commercial drone use continues, reasonably requiring accountability for the drones mirrors many other areas of responsible commercial operations including vehicle registration, vehicle insurance, and commercial licenses.

Drone Registration

First, all commercial drones must be registered. Each commercial drone must contain an indelible identification sequence to identify the drone–both visible and electronic.

The commercial drone operator must register the drone, maintain current contact information for the responsible parties, and proof of liability insurance. Thus, registration provides a direct means to hold drone operators responsible for drone actions.

Liability Insurance

Without sufficient liability insurance, drone operators evade paying their fair share during accidents. Even more troublesome are ad hoc commercial operators, without insurance or adequate resources, causing accidents and shifting the costs to the victims.

Commercial drone operators must maintain proof of adequate drone insurance–to protect the public from drone damages. This serves an essential public benefit by reducing incidents where persons injured by commercial drones cannot recover from the drone operator.

Training and Licensing

Commercial use of drones requires skill and knowledge of the rules–much as driving or flying. Commercial drone operators must complete drone training (with refreshers) and obtain a license (proving knowledge of operation and the rules).

Conclusion

Many of the problems associated with commercial drones are easily remedied. Training, licensing, registration, and financial responsibility mitigate reckless uses of drones—uses where persons are injured or property damaged without proper financial responsibility to recover—and provide accountability. The simple proposed rules properly balance necessary commercial uses with valid concerns over responsibility for the devices. No legitimate business would validly argue against basic responsibility for the commercial operations.

The no-spy-no-fly properly balances, just as with trespass, the desires of individuals or communities to be “left alone.” Drones by their very nature pose special privacy issues and must be balanced. Leaving individuals or communities to decide what degree of interference is acceptable provides a fair compromise.

The special public safety no-fly zones address real situations where commercial uses of drones  interfere with true emergencies. Granted, improper use of public safety exceptions, for example impeding news and press coverage, should be addressed to assure a proper and Constitutional balance.

Finally, true hobbyist uses can remain largely unchanged. However, penalties for improper commercial uses of hobbyist equipment will increase to deter wrongdoers. Hobbyists should welcome the penalties because they protect the hobby. Granted, some commercial uses will balk at such regulations and seek to use hobbyist systems for commercial purposes–another reason to impose stiff penalties to deter such behavior.

Publication Information:

Drafted 22 February 2014