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Droning Around: How the FAA’s Lethargic & Haphazard Regulation of

Commercial Small Unmanned Aircraft Systems is Obstructing Economic Growth

Nathan Charles Pitluk

Abstract:

The focus of this article is to give an overview of U.S. regulation of unmanned aircraft

systems vehicles (“UAS”), commonly known as drones. In addition to generally discussing

commercial UAS regulations in the U.S. and its policies, this article will provide a quick overview

of other international regulations of commercial UAS regulations. These international regulations

will highlight the U.S.’s current standing within the international race to drone supremacy. This

comparison will allow us to understand where the U.S. can gain ground and capture what is poised

to become an $82 billion dollar industry.

Introduction

The benefits of drone power can provide a number of creative and efficient solutions for

citizens and businesses throughout the country. However, some people fear the rise of the drone.

In fact, the word drone has negative connotations, synonymous with terminators flying over us

with bombs or spy on our everyday lives. A different picture needs to be painted for the general

public, a shifted thinking from a future where a drone’s greatest role is a machine designed to kill

and spy. The potential for innovation and economic growth far outweigh any science fiction fears.

The potential uses of drones should excite the public and spark the imagination and ingenuity of

the American people. Automated machines are already a robust part of the commercial setting,

helping manufacture goods and sort inventory for entire warehouses. It is doubtful anyone fears

the machine that constructed the car they drive every day, and yet, once the machines become

mobile, free to roam the earth, the end is near. These fears must subside. With a drone industry

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that is projected to earn more than $82.1 billion in the next decade, the U.S. cannot afford these

fears.1 As unmanned aircraft systems take to the skies, accept your new drone overlords and all

they bring to help solve a number of economic and infrastructural issues.

Imagine the possibilities and freedom that unmanned aircraft could bring to the world.

Many logistical hurdles the U.S. faces could be alleviated or cured, including fewer trucks on the

road, greater crop yields, and faster internet. And that is only the beginning. When the Federal

Aviation Administration (“FAA”) pulls back its tenuous rules and haphazard policies and the

public freely gets to use this technology, who knows what innovative uses the general public can

discover. But to get there, the U.S. will need to traverse unstable legal landscapes. The FAA has

been slow to enact regulations that delineate the requirements for operating commercial unmanned

aircraft systems (UAS) in the national airspace system (NAS).2 Because of this lethargic

rulemaking Congress added a UAS section to the FAA Modernization and Reform Act, mandating

that the FAA integrate civil unmanned aircraft systems by September 30, 2015.3 But, the FAA’s

slow and unsteady approach is not the only problem. States have taken matters into their own

hands, proposing regulations aimed at curbing police surveillance and protecting privacy rights.4

While privacy is an important constitutional right, these regulations pose another hurdle for

integration of UAS into the national airspace. The U.S. needs to tread a careful line between

1 Darryl Jenkins & Bijan Vasigh, The Economic Impact of Unmanned Aircraft Systems Integration in the

United States, AUVSI, at 2 (Mar. 2013), available at

http://higherlogicdownload.s3.amazonaws.com/AUVSI/958c920a-7f9b-4ad2-9807-

f9a4e95d1ef1/UploadedImages/New_Economic%20Report%202013%20Full.pdf 2 See Joan Lowy, U.S. Lags as Commercial Drones Take Off Around Globe, HUFFINTONPOST.COM (Mar.

17, 2014), http://www.huffingtonpost.com/2014/03/17/us-drones-_n_4978768.html. 3 See FAA Modernization and Reform Act of 2012, PL 112-95, 126 Stat 11 §323 (2012). 4 See Allie Bohm, Status of Domestic Drone Legislation in the States, ACLU (last updated June 30,

2014), https://www.aclu.org/blog/technology-and-liberty/status-2014-domestic-drone-legislation-states

(“2014 legislation introduced in 36 states, active in 22 states, and enacted in 4 states. Overall (2013-

2014): laws enacted in 13 states.”).

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protecting those rights and catering to fear mongers, a difficult hurdle with advances in

surveillance technology and the estimated 15,000 drones in the sky by 2020 and 30,000 by 2030.5

Alas, whenever there is a new technology there is always a potential for abuse and misuse.

Although computer systems are routinely compromised, it has not stop Americans from trusting

them with all of their personal information. Do you think that phone in your pocket holds less

personal information than a drone with a camera flying 100 feet above your home? Many of us,

however, could not live without computers and smart-phones – they have changed the world. Few

would choose to change course and reverse the socio-economic benefits they produced. Drones

will have a similar impact. Just as smart-phones put computers in the hands of the public, drones

will give the public greater access to the national airspace. But how should the FAA integrate

unmanned aircraft systems into the national airspace? Are other countries integrating UAS faster

or more efficiently than the U.S.? While countries like China, Australia, Canada, and the United

Kingdom are ahead and started their UAS integration, the U.S. still has the potential to take the

lead. “Because [UAS] are inherently different from manned aircraft, introducing UAS into the

nation’s airspace is challenging for both the FAA and aviation community.”6 However, difficulty

is not an excuse, and the FAA’s delay in promulgating a clear regulatory regime for commercial

UAS is detrimental to economic growth in a period of time where research and expansion are key

to capturing the drone market. It’s time for America to regain its imagination, open the door, and

take the lead with regulations, not wait to be left in the dust. The U.S. may be behind in its

5 FAA Aerospace Forecast Fiscal Years 2010-2030, FED. AVIATION ADMIN (last visited Oct. 22, 2014),

available at http://www.faa.gov/data_research/aviation/aerospace_forecasts/2010-

2030/media/2010%20Forecast%20Doc.pdf. 6 Fact Sheet – Unmanned Aircraft Systems (UAS), FED. AVIATION ADMIN (Jan. 6, 2014),

http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=14153.

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regulations, but it could take the lead with full integration of commercial UAS and an open mind

towards autonomous aircraft systems.

Discussion

The Economic Impact of the Drone Market

The most concerning issue with the FAA’s delay in integrating UAS is the potential market

effect on UAS. UAS integration into the NAS will have a tremendous impact on the U.S. economy,

totaling “more than $13.6 billion in the first three years of integration and will grow sustainably .

. . to more than $82.1 billion between 2015 and 2025.” 7 The integration of UAS will be more than

just a jump start, there will be continuous growth and “[b]y 2025, total job creation is estimated at

103,776.”8 Not only will UAS be a multi-billion dollar industry, “[i]ntegration into the NAS will

create more than 70,000 new jobs in the first three years.”9 Many of these jobs will be tied to the

manufacturing of drones and “[t]he manufacturing jobs created will be high paying ($40,000) and

require technical baccalaureate degrees.”10 Outside of helping the infrastructure through delivery

logistics, other industries could benefit, including agriculture, weather monitoring, law

enforcement, disaster support, film, construction and environmental surveying,11 and even internet

services.12

7 Jenkins & Vasigh, supra note 1. 8 Id. 9 Id. 10 Id. 11 See Joseph Dussault, 7 Commercial Uses for Drones, BOSTON.COM(Mar. 12, 2014),

http://www.boston.com/business/2014/03/14/commercial-uses-for-

drones/dscS47PsQdPneIB2UQeY0M/singlepage.html; see also Jenkins & Vasigh, supra note 1. 12 Facebook wants to fly huge unmanned aircraft for months or years at a time that beam down faster

internet than satellites higher above. These planes would fly higher than commercial passenger aircraft.

Connecting the World from the Sky, FACEBOOK (last visited Oct. 22, 2014), available at https://fbcdn-

dragon-a.akamaihd.net/hphotos-ak-ash3/t39.2365-6/851574_611544752265540_1262758947_n.pdf.

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On the verge of becoming a booming industry, it is hard for anyone to ignore the potential

impact. Drone integration should be a topic for 2016 political candidates across all tiers of the

political landscape, state and federal. States will need to decide between strict privacy rights

against UAS and greater tax revenues given “[t]ax revenue to the states will total more than $482

million in the first 11 years following integration (2015-2025).”13 These numbers are staggering

in their amount and speed of growth. However, the FAA needs to implement integration

immediately and be permissive in flight certification and authorization to fully realize these

potential gains. “Every year that integration is delayed, the United States loses more than $10

billion in potential economic impact. This translates to a loss of $27.6 million per day that UAS

are not integrated into the NAS.”14

What Drones are We Talking About?

Before discussing the implementation of unmanned aircraft systems into the national

airspace, it is important to discuss the appropriate terminology. The FAA established the National

Airspace System (NAS) which is “made up of a network of air navigation facilities, ATC facilities,

airports, technology, and appropriate rules and regulations” that define where and how an aerial

vehicle can be operated within that space.15 This NAS framework is where the integration of

unmanned aircraft systems (UAS) will occur. The acronyms UAS, UAV (unmanned aerial

vehicles), RPA (remotely piloted aircraft), and RPAS (remotely piloted aircraft systems) are all

used interchangeably.16 While used interchangeably, the public simply knows them as drones.

13 Jenkins & Vasigh, supra note 1 14 Id. 15 National Airspace System Overview, FED. AVIATION ADMIN. (last visited Oct. 22, 2014, available at

https://www.faa.gov/air_traffic/nas_redesign/regional_guidance/eastern_reg/nynjphl_redesign/documenta

tion/feis/appendix/media/Appendix_A-National_Airspace_System_Overview.pdf. 16 Richard Whittle, DON’T SAY ‘DRONES,’ Beg Drone Makers, BREAKING DEFENSE (Aug. 14, 2013),

http://breakingdefense.com/2013/08/dont-say-drones-beg-drone-makers/2/.

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UAS is the neutral term Congress and the FAA selected to use for the more colloquial, all-

encompassing drone.17 However, “drone” has negative connotations.18 The Association for

Unmanned Vehicle Systems International (AUVSI) and the military would have us believe drone

needs to be avoided because of the negative connotations connected to the Predator drones and the

deadly strikes drones carry out.19 While it can be difficult to rehabilitate an image once sullied, the

word drone is not going anywhere.20 As this article will highlight, the true potential of DRONES

has not been tapped and their contribution to society will far outweigh their use in war. Hopefully,

its future successes will define its image. For the remainder of this article, UAS and drones will be

used interchangeably.

The focus of this article is small unmanned aircraft systems (sUAS), which are UAS below

55 pounds.21 Small unmanned aircraft are, as the FAA acknowledges, the fastest growing sector

of UAS in civil markets and commercial industries “because of their versatility and relatively low

initial cost and operating expenses.”22 One of the biggest areas of potential growth is the delivery

industry; Google, Amazon, and delivery companies like FedEx, UPS, and DHL are currently

17 E.g., FAA Modernization and Reform Act of 2012, PL 112-95, 126 Stat 11 §333 (2012) Unmanned

Aircraft Systems, FED. AVIATION ADMIN. (Sept. 25, 2014), http://www.faa.gov/uas/. 18 See Konstantin Kakaes, Banishing the Word Drone Won't Solve the Unmanned Vehicle Industry's Real

Problems, SLATE (Aug. 16, 2013),

http://www.slate.com/blogs/future_tense/2013/08/16/banishing_the_word_drone_won_t_solve_the_uav_i

ndustry_s_real_problems.html; Nidhi Subbaraman, Don't call 'em drones: The wide world of unmanned

flying machines, NBC NEWS (Mar. 15, 2013), http://www.nbcnews.com/tech/innovation/dont-call-em-

drones-wide-world-unmanned-flying-machines-f1C8857699; Richard Whittle, DON’T SAY ‘DRONES,’

Beg Drone Makers, BREAKING DEFENSE (Aug. 14, 2013), http://breakingdefense.com/2013/08/dont-say-

drones-beg-drone-makers/2/. 19 Richard Whittle, DON’T SAY ‘DRONES,’ Beg Drone Makers, BREAKING DEFENSE (Aug. 14, 2013),

http://breakingdefense.com/2013/08/dont-say-drones-beg-drone-makers/2/. 20 Id. 21 FAA Modernization and Reform Act of 2012, PL 112-95, 126 Stat. 11 §331 (2012) 22 Fact Sheet – Unmanned Aircraft Systems (UAS), FED. AVIATION ADMIN (Jan. 6, 2014),

http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=14153.

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developing their own sUAS to make deliveries to customers.23 For example Amazon’s current

sUAS plan predicts that it will be able to transport products that weigh up to five pounds, which

encompasses 86% of their inventory.24 In addition to the terminology, a framework of aviation law

is necessary to understand the origins of aircraft regulation, the differences between regulating full

sized aircraft and sUAS, and where FAA regulations and policies stand in this new era of aviation.

The Legal Framework

The Common Law and the Birth of Airspace Regulation

Every first year law student has likely heard the common law maxim of cujus est solum,

ejus est usque ad coelom, which means he who owns the soil owns upward unto heaven.25 This

common law maxim was adopted by America,26 but came into legal contention when aircraft

became prevalent in the United States during the early 1900’s. With an influx of aircraft taking to

the private skies, the property owners took to the courts, seeking to defend their property rights

23 It is important to note that these companies are not testing their sUAS deliveries in the U.S. and usually

not disclosing where. See Alexis Madrigal, Inside Google's Secret Drone-Delivery Program, THE

ATLANTIC (Aug. 28, 2014), http://www.theatlantic.com/technology/archive/2014/08/inside-googles-

secret-drone-delivery-program/379306/?single_page=true; Ben Popper, UPS researching delivery drones

that could compete with Amazon's Prime Air, THE VERGE (Dec. 3, 2013),

http://www.theverge.com/2013/12/3/5169878/ups-is-researching-its-own-delivery-drones-to-compete-

with-amazons?_ga=1.257182667.1502360652.1410971211; Josh Lowensohn, FedEx laughs off delivery

drones while developing its own, THE VERGE (Dec. 18, 2013),

http://www.theverge.com/2013/12/18/5225152/fedex-laughs-off-delivery-drones-while-developing-its-

own; Ben Popper, Europe's largest parcel service, DHL, shows off a test flight of its delivery drone, THE

VERGE (Dec. 9, 2013), http://www.theverge.com/2013/12/9/5192430/europe-largest-parcel-service-dhl-

shows-off-a-test-flight-of-its. 24 Paul Misener, Amazon Prime Air - Exemption/Rulemaking (July 9, 2014), available at

http://www.regulations.gov/#!documentDetail;D=FAA-2014-0474-0002 (Amazon.com’s petition to be

exempt from certain FAA regulations to “conduct additional research and development for Prime Air . . .

.”) (hereinafter “Amazon Petition”). 25 Major Walter S. King, The Fifth Amendment Takings Implications of Air Force Aircraft Overflights

and the Air Installation Compatible Use Zone Programs, 43 A.F. L. Rev. 197, 198 (1997); see also

Restatement (Second) of Torts § 159 (1965) (comment g). 26 Id.

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with trespass and nuisance claims.27 U.S. courts scrambled to piece together a coherent legal

framework to tackle these novel legal issues.28

Congress responded in 1926 with the Air Commerce Act (“ACA”).29 The ACA’s purpose

was to “encourage and regulate the use of aircraft in commerce and for other purposes.”30 Although

private rights and safety were a concern, the ACA focused on economic growth in a young

industry, specifically “[t]o study the possibilities for the development of air commerce and the

aeronautical industry and trade in the United States.”31 The FAA can learn from the ACA. The

ACA expressly stated that all “interstate or foreign air commerce” meant air commerce between,

within, and through the airspace of any state, territory, or place outside.32 Congress did not coddle

or suppress the expansion of the aviation industry, but welcomed the industry by opening the door

and learning from and fixing mistakes along the way. Through the ACA and later amendments,

the United States established “complete and exclusive national sovereignty in the air space . . . .”33

The ACA did not define the scope of air rights, which forced the Supreme Court to define

them in United States v. Causby.34 The issue presented was whether the landowner’s property was

taken under the Fifth Amendment by frequent flights of military aircraft over the landowner’s

property at low altitudes.35 These planes took a path over his home, flying only about 60 feet above

27 Id. at 198. 28 Id. 29 Id. at 199 (much like Congress’s recent action ordering the FAA to integrate UAS). 30 Air Commerce Act of 1926, 69 Cong. Ch. 344, 44 Stat. 568, (1926). 31 Air Commerce Act §2(c). 32 Air Commerce Act §1. 33 United States v. Causby, 328 U.S. 256, 260 (1946) (internal quotations omitted). 34 328 U.S. 256 (1946). 35 Id. at 258.

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his home and barn, affecting the use and enjoyment of his land.36 The Court knew that landowners

were entitled to full use and enjoyment of their lands, stating they were entitled to at least the

“exclusive control of the immediate reaches” of their airspace.37 The Court held that the flights

constituted a taking because flights over private land may constitute a trespass if they are “so low

and so frequent as to be a direct and immediate interference with the enjoyment and use of the

land.”38 The Court reasoned that because continuous invasions of one’s airspace immediately

above the land could “limit the utility of the land and cause a diminution in its value,” the full use

and enjoyment of that land could not be realized and a trespass occurred the same as on the surface

of the land.39

The Court in Causby balanced the interests of property owners and the rights of public

airspace use granted by Congress. In the end, the Court protected real property rights, but the Court

also defined practical limitations of those rights, restricting landowners to the airspace they could

actually “occupy or use in connection with the land.”40 The Court declared that the immediate

reaches above the land are properly part of the landowner’s rights, but the airspace above that is

basically a public highway that is part of the public domain.41 Causby clarified the right to public

use of airspace while still carving out some protection for landowners.

The Creation of the National Airspace System

36 Id. (the landowner brought the complaint because multiple aircraft would pass over his property

causing noise and glare from lights. The family living there lost sleep and their farm suffered, losing

about 150 chickens that died from fright). 37 Id. at 264. 38 Id. at 266. 39 Id. at 262, 265. 40 Id. at 264. 41 Id. at 266.

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In 1958, the Federal Aviation Act established the FAA and delegated the authority to

regulate the use of the U.S. airspace.42 The FAA started by creating the National Airspace System

(NAS) to build a safe and efficient airspace for civil, commercial, and military aviation and protect

the public and property on the ground.43 The NAS created classes of airspace, which the air traffic

control is required to maintain;the controlled airspaces are A, B, C, D, and E regulate the airspace

between 60,000 feet and 700 feet.44 Below 700 feet is uncontrolled, class G airspace.45 Class G

airspace is not under air traffic control’s authority, but is still within the authority of the FAA.46

Class G airspace, especially under 400 feet, is the regulatory battle ground for sUAS operation and

use.47

FAA UAS Policies, Rules, and Regulations

The FAA’s 2007 Notice of UAS Policy

In 2007, the FAA issued a notice of their policy regarding clarifying the classification of

different UAS uses and declaring the operational requirements under those classes.48 The policy

discusses three types of UAS uses: public, civil, and recreational use of model airplanes.49 This

policy was the first time the FAA acknowledged the growing UAS industry.50 However, that

acknowledgement was the extent of the FAA’s contribution to UAS growth. The FAA went on to

42 National Airspace System Overview, FED. AVIATION ADMIN. (last visited Oct. 22, 2014, available at

https://www.faa.gov/air_traffic/nas_redesign/regional_guidance/eastern_reg/nynjphl_redesign/documenta

tion/feis/appendix/media/Appendix_A-National_Airspace_System_Overview.pdf. 43 Id. 44 Id. 45 Id. 46 Id. 47 Fact Sheet – Unmanned Aircraft Systems (UAS), FED. AVIATION ADMIN (Jan. 6, 2014),

http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=14153 (“UAS must be flown . . . less than

400 feet above the ground . . . inside Class G (uncontrolled) airspace and more than five miles from any

airport or other location with aviation activities.”). 48 Unmanned Aircraft Operations in the National Airspace System, 72 FR 6689-0, at 6690 (2007). 49 Id. 50 Id. at 6689 (“[Civil UAS] is a quickly growing and important industry.”).

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declare that UAS operations in the National Airspace System would require “specific authority.”51

While some people operated under the assumption that UAS fell into the model aircraft category,52

the FAA shot down those assumptions stating

“The FAA recognizes that people and companies other than

modelers might be flying UAS with the mistaken understanding that

they are legally operating under the authority of AC 91-57.53 AC 91-

57 only applies to modelers, and thus specifically excludes its use

by persons or companies for business purposes.”54

Because UAS operations needed specific authority, the FAA set forth the means to obtain that

authorization for private, non-recreational use:

Under FAA policy, operators who wish to fly an unmanned aircraft

for civil use must obtain an FAA airworthiness certificate the same

as any other type aircraft. The FAA is currently only issuing special

airworthiness certificates in the experimental category.

Experimental certificates are issued with accompanying operational

limitations (14 CFR 91.319) that are appropriate to the applicant's

operation. The FAA has issued five experimental certificates for

unmanned aircraft systems for the purposes of research and

development, marketing surveys, or crew training. 55

While the FAA established a means for obtaining authorization to operate civil UAS, only five

had been issued and the FAA expressly prohibited experimental certificates as a source for

compensation or hire.56 The FAA took a cautious approach, assessing “the feasibility of creating

a different category of unmanned ‘vehicles’ that may be defined by the operator's visual line of

sight and are also small and slow enough to adequately mitigate hazards to other aircraft and

persons on the ground,” but the FAA was uncertain whether sUAS would fit into an already

defined category, need to be a new category of aircraft, or even need a certificate of

51 Id. at 6690. 52 Id. (“[S]ome operators have used the [model aircraft advisory circular] as the basis for commercial

flight operations.”). 53 Id. (“[T]he FAA published Advisory Circular (AC) 91-57, Model Aircraft Operating Standards for the

purpose of providing guidance to persons interested in flying model aircraft as a hobby or for recreational

use.”). 54 Id. 55 Id. at 6689-90. 56 Id. at 6690.

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airworthiness.57 This policy laid dormant until the FAA used it as a basis to fine an individual for

reckless operation of a commercial UAS. The Pirker Decision

In 2011, the FAA tried to enforce its 2007 policy as an administrative rule. Raphael Pirker

operated a UAS over the University of Virginia’s (UVA) campus, recording footage of the UVA

campus that Lewis Communications had hired Pirker to shoot.58 From the footage, the FAA

determined that Pirker had operated the UAS in “a careless or reckless manner so as to endanger

the life or property of another,” violating the Federal Aviation Regulations (FARs).59 The FAA

fined Pirker $10,000 for operating a UAS in a dangerous manner, flying directly at a pedestrian,

through a tunnel with moving vehicles, below tree top levels, 15 feet above a UVA statue, 20 feet

above an active street with vehicles and pedestrians, within 25 feet of numerous UVA buildings,

under an elevated walkway between buildings, and within 100 feet of an active hospital heliport.60

Pirker appealed this fine to the National Transit Safety Board.61 The FAA tried to argue

that the UAS operated by Pirker was an aircraft under its regulatory regime.62 To prove that sUAS

fell under the definition of an “aircraft,” the FAA pointed to the 2007 Notice of Policy as a

substantive rule that set forth operational requirements for UAS and removed UAS from the

unregulated model aircraft category.63 The Administrative Law Judge (ALJ) rejected this argument

57 Id. (“The end product of this analysis may be a new flight authorization instrument similar to AC 91-57

[model aircraft], but focused on operations which do not qualify as sport and recreation, but also may not

require a certificate of airworthiness.”). 58 Fed. Aviation Admin. v. Pirker, CP-217, 2014 WL 3388631, at *6 (N.T.S.B. Mar. 6, 2014)(hereinafter

“Pirker Decision”); see sUAS News, Stunt Sheep Don t try this at home: Trappys $10k fine UVA video,

YOUTUBE (Oct. 15, 2013), https://www.youtube.com/watch?v=OZnJeuAja-4 (“Raphael Pirker (aka

Trappy) and Team Blacksheep are defending a $10,000 fine from the FAA based on the content of this

video.”). 59 Pirker Decision, supra note 58 at *1, fn. 3(“Part 91, Section 91.13(a) provides: No person may operate

an aircraft in a careless or reckless manner so as to endanger the life or property of another.”). 60 Id. at *6. 61 Id. at *1. 62 Id. at *3-*4. 63 Id.

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and found that the FAA’s 2007 Notice of Policy was not a valid rule implemented through notice

and comment rulemaking.64 The ALJ found that Congress – through the FAA Modernization and

Reform Act of 2012 – expressly tasked the FAA with making rules for UAS, and Congress did not

recognize the FAA’s 2007 Notice of Policy as an effective rule.65 Additionally, the ALJ found that

Pirker’s UAS was not an aircraft, but instead, fell under model aircraft and was “subject only to

the FAA's requested voluntary compliance with the Safety Guidelines stated in AC 91-57.”66

The FAA is currently appealing the decision, but this decision sent ripples through the drone

industry and muddied the skies even further.67 As far as this decision was concerned, there are no

rules governing UAS operations and class G airspace is now the “Wild West.”68 The decision blurs

the line between what qualifies as a recreational sUAS use and what is commercial, and it gives

little reasoning as to why UAS are not aircraft. The purpose was commercial, but the model used

in these flights was relatively small. Did the size factor into the decision,69 and if so, would a

heavier weight factor into another ALJ’s decision? This uncertainty will keep the drone industry

in limbo until the FAA promulgates final rules for UAS that Congress mandated under the FAA

Modernization and Reform Act of 2012.FAA Modernization and Reform Act of 2012

Five years after the issuance of the 2007 Notice of Policy on UAS, Congress ordered the

FAA to promulgate a workable framework and final rules for commercial drone use.70 The FAA,

is tasked “to safely accelerate the integration of civil unmanned aircraft systems into the national

airspace system.”71 This effort was not to be undertaken alone though, and Congress wanted the

FAA to consult with representatives of the aviation industry, Federal agencies that employ

64 Id. at *4 (“Notice 07-01 does not, however, meet the criteria for valid legislative rulemaking, as it was

not issued as a Notice of Proposed Rulemaking (NPRM), and if intended to establish a substantive rule, it

did not satisfy the requirements of 5 U.S.C., Section 553(d), which requires publication of notice not less

than 30 days before the effective date.”). 65 Id. 66 Id. at *5. 67 See Bart Jansen, Federal appeal may define FAA authority over drones, USA TODAY (July 2, 2014),

http://www.usatoday.com/story/money/business/2014/07/02/ntsb-drones-faa-appeal-pirker/11793203/. 68 Id. 69 Pirker Decision, supra note 58 at *7 (Attachment 2: the UAS Pirker used weighed 41lbs 7oz). 70 FAA Modernization and Reform Act of 2012, PL 112-95, 126 Stat 11 §332(a)(1), (2012). 71 Id.

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unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft

systems industry.72

The Act directs that the FAA rulemaking must give specific recommendations on minimal

“standards for operation and certification of civil unmanned aircraft systems;” require that “civil

unmanned aircraft systems include[] a sense and avoid capability;” and “establish standards and

requirements for operators and pilots,” including registration and licensing.73 In the plan, the FAA

must develop “the best methods to enhance the technologies and subsystems” so that civil UAS

will be operated in a safe and routine manner in the national airspace system.74 The FAA must

develop certification, flight, and air traffic control standards and create airspace designations for

simultaneous and cooperative manned and unmanned flight operations.75 The FAA must

implement its final rule and requirements in a “phased-in approach.”76 These requirements show

that Congress is seeking a comprehensive framework from the FAA.

Congress also wants the FAA’s UAS plan to be incorporated into the NextGen

Implementation Plan (NGIP).77 The NGIP is the FAA’s plan to upgrade the current aviation

methods of guiding and tracking aircraft to be more precise and offer more direct routes for aircraft

traveling from terminal to terminal.78 NextGen claims it will enhance flight efficiency by

improving safety, reducing delays, saving fuel and reducing the number of aircraft.79 However, the

72 Id. at §332(a)(2)(A). 73 Id. at §332(a)(2)(B). 74 Id. (Congress failed to clearly define what “methods” entail, especially confusing when it pertains to

technology and subsystems). 75 Id. at §332(a)(2)(G)-(H). 76 Id. at §332(a)(2)(C). 77 Id. at §332(a)(2)(I). 78 NextGen Update: 2014, FED. AVIATION ADMIN (Aug. 2014), available at

http://www.faa.gov/nextgen/media/NextGenUpdate2014.pdf. 79 Id.

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NextGen Update: 2014 specifically states that UAS are not part of NextGen integration and the

NextGen Implementation Plan gives cursory acknowledgements that UAS could take advantage

of some NextGen systems.80 Not a great start to fulfilling the requirements Congress wanted for

integration.

In the meantime, Congress understands the UAS industry’s need to research and develop

so their programs can launch as soon as the FAA completes the final rules for integration. Under

Section 333, Congress granted the FAA the power to “expedite operational authorization,” which

arguably means that the FAA can make independent case-by-case judgments to “determine if

certain unmanned aircraft systems may operate safely in the national airspace system before

completion of the plan and rulemaking required.”81 In making this determination, the FAA must

determine two things: (1) whether that type of UAS will “create a hazard to users of the national

airspace system, or the public” based on “size, weight, speed, operational capability, proximity to

airports and populated areas, and operation within visual line of sight” and (2) whether a UAS

operator must obtain a certificate of waiver, certificate of authorization, or airworthiness

certification.82 This section was arguably a missed opportunity in Pirker for the FAA to argue that

Congress had given deference to the FAA. This section may provide the FAA the ability to declare

a use either safe or unsafe, but also omits any language that would allow the FAA to enforce their

determinations or bring a cause of action. Uncertainty in the requirements for UAS flight seems to

be holding many companies back from using sUAS in the national airspace system.

80 Id. (UASs aren’t a part of NextGen, but NextGen technologies will play a role in their implementation);

NextGen Implementation Plan, FED. AVIATION ADMIN (DATE), available at

http://www.faa.gov/nextgen/library/media/nextgen_implementation_plan_2014.pdf. 81 FAA Modernization and Reform Act, §332(b)(1). 82 Id. at §333(b)(1)-(2).

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No matter what plan the FAA develops, the plan must “provide for the safe integration of

civil unmanned aircraft systems into the national airspace system as soon as practicable, but not

later than September 30, 2015.”83 However, the FAA Modernization and Reform Act deadline has

no teeth and can hardly be called a deadline because the act has no requirements for the agency to

take precise, measurable steps. There are no penalties for tardiness in the rule making process nor

any formal compliance mechanisms forcing the agency to act.84 The FAA’s lack of incentive to

develop a UAS framework with some haste will harm the UAS industry’s growth and the U.S’s

potential to grab a larger slice of the $82 billion dollar pie. Further, phasing-in this plan equates to

slowly implementing a protective approach, which is a mistake when the industry needs free reigns

to blossom.

Exemption Confusion: How to Obtain a Civil UAS Exemption

Immediately after the passing of the FAA Modernization and Reform Act of 2012

(FMRA), many held the belief that the only means for obtaining permission to fly civil UAS was

to apply for a “Certificate of Waiver or Airworthiness” (COA) or a “Special Airworthiness

Certificate” (SAC).85 FAA regulations provide various categories for which a SAC may be

granted, but civil UAS are only authorized as an experimental certificate.86 14 C.F.R. §21.193 sets

forth required information to be included in an application for an experimental certificate, such as:

the purpose for the aircraft, data (such as photographs) to identify the aircraft, any information

necessary to safe guard the public, the purpose of the experiment, the estimated number of flights,

83 Id. at §332(a)(3). 84 Wells Bennett, Unmanned at Any Speed: Bringing Drones into Our National Airspace, ISSUES IN

GOVERNANCE STUD. (Brookings Inst., D.C.), Dec. 2012, at 3, available at

http://www.brookings.edu/~/media/Research/Files/Papers/2012/12/14%20drones%20bennett/1214_drone

s_bennett.pdf. 85 Id. at 3. 86 Id. at 12.

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the location of the flights, and 3D drawings and dimensions for the aircraft.87 If all the requirements

under 14 C.F.R §21.193 are met, the FAA may issue a certificate; however, certified UAS are

explicitly limited to research and development and cannot be used for commercial purposes.88

Determining the correct avenue to obtain civil UAS flight permission can be unclear. The

SAC approach, while still an important factor, is not the main avenue to obtain flight permission.

The main UAS page on the FAA’s website states that “[o]btaining a Special Airworthiness

Certificate in the experimental category for a particular UAS is currently the only way civil

operators of unmanned aircraft are accessing the NAS.”89 However, the FAA has been “working

with civilian operators to collect technical and operational data that will help refine the UAS

airworthiness certification process.”90 This cooperative effort has resulted in a more streamlined

procedure to petition for small UAS exemption under Section 333 of the FRMA.91 These

contradictory statements make this process difficult and frustrating, but at least the process has

recently been streamlined into less of a guessing game.

To comply with FMRA, the FAA established a UAS Integration Office that provides case-

by-case determinations of Section 333 UAS exemptions.92 On September 25, 2014, the FAA

87 14 C.F.R. §21.193 et. seq. 88 Special Airworthiness Certificate, FED. AVIATION ADMIN,

https://www.faa.gov/aircraft/air_cert/airworthiness_certification/sp_awcert (last updated Sept. 25, 2014). 89 Unmanned Aircraft Systems, FED. AVIATION ADMIN, https://www.faa.gov/uas/ (last updated Sept. 25,

2014). 90 Id. 91 Section 333, FED. AVIATION ADMIN, available at

https://www.faa.gov/uas/legislative_programs/section_333/ (last updated Sept. 25, 2014); see Unmanned

Aircraft Systems, supra note 89 (last updated Sept. 25, 2014) (“The FAA has been working for several

months to implement the provisions of Section 333 of the FAA Modernization and Reform Act of 2012,

‘Special Rules for Certain Unmanned Aircraft Systems,’ which will allow for commercial operations in

low-risk, controlled environments.”). 92 Petitioning for Exemption under Section 333, FED. AVIATION ADMIN,

https://www.faa.gov/uas/legislative_programs/section_333/how_to_file_a_petition/ (last updated Oct. 21,

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provided a frame work to get approval for civil UAS operations, two years after the FMRA

passed.93 First, the new guidelines state that civil UAS operators have the “option” to obtain an

FAA airworthiness certification by applying for a SAC, but are not required.94 According to the

guidelines, the application must meet the requirements of 14 C.F.R. § 11.81.95 Pursuant to. §11.81,

the petitioner must include statements about which 14 CFR sections the petitioner wants exemption

from, the extent of relief sought, why granting it would be in the public interest, how public safety

would not be affected, and granting the FAA right to publish a summary in the Federal Register.96

The guidelines also set forth what information will be considered in the exemption

evaluation, including safety characteristics of the UAS and the operation/flight.97 This safety and

operational information must include information about: (1) design and operational characteristics;

(2) pre-flight inspections, maintenance, and repair; (3) the radio frequency to be used; (4)

qualifications required of any pilots in command, including their required certifications and

amount of experience; (5) the actual flight plan, including the proposed maximum operating speed

and altitude, minimum flight visibility, weather conditions, and proximity to airports; (6) “[t]he

UAS must be operated within visual line-of-sight (VLOS),” pursuant to FMRA § 333(b)(1); (7)

internal procedures requiring notification to the Flight Standards District Offices (FSDOs) prior to

2014) (these guideline likely only pertain to small UAS because large UAS will need to be fully

integrated into the other classes of the national airspace with manned aircraft). 93 Public Guidance for Petitions for Exemption Filed under Section 333, FED. AVIATION ADMIN (Sept.

25, 2014), available at

https://www.faa.gov/uas/legislative_programs/section_333/how_to_file_a_petition/media/section333_pub

lic_guidance.pdf (starting this article before Sept. 25, 2014, the author has firsthand knowledge of the vast

improvements of this entire process); see Attachment to comment Supplemental Guidance on the

Submission of Petitions, REGULATIONS.GOV (Oct. 15, 2014), available at

http://www.regulations.gov/#!documentDetail;D=FAA-2014-0397-0007. 94 Public Guidance for Petitions for Exemption Filed under Section 333, supra note 93. 95 Id. at 5. 96 14 C.F.R. §11.81 et. seq. 97 Public Guidance for Petitions for Exemption Filed under Section 333, supra note 93 at 5.

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operation; and (8) “obtaining a Certification of Waiver or Authorization (COA) from the FAA Air

Traffic Organization.”98 “In seeking authorization, petitioners will require exemptions from

regulations with which they cannot fully comply.”99 The FAA also lists a number of regulations

that may need exemption, most important is the exemption from the Airworthiness Certification,100

but the list is not exclusive and each company must determine if their operations will require

further exemptions.101 After the submitting the petition for exemption,102 the entity seeking

exemption must file a separate COA application.103

The exemption process implemented by the FAA is tedious and uncertain. Hopefully, these

exemptions are not looked at with great scrutiny. Many companies are trying to work within the

national airspace system to test out their UAS, but also help the FAA determine the best course of

action for future regulation. For an example, in July 2014, Amazon petitioned the FAA for an

exemption to conduct research and development.104 The FAA needs to allow companies like

Amazon to conduct these test flights so that commercial integration into the NAS will be smoother

out the gate. The more exemptions the FAA allows, the more data it can gather to help develop its

rules.

98 Id. at 5-7. 99 Id. at 7. 100 14 C.F.R. § 21 et seq. 101 Public Guidance for Petitions for Exemption Filed under Section 333, supra note 93 at 7 (suggested

exemptions include: airworthiness certificate, preflight action, flight crewmember stations, flight

instructions, minimum safe altitudes, altimeter settings, fuel requirements, maintenance records, and

inspections). 102 Exemptions can be submitted online at regulations.gov. 103 Petitioning for Exemption under Section 333, supra note 93; see FAA UAS Civil COA Request, FED.

AVIATION ADMIN, available at

https://www.faa.gov/uas/legislative_programs/section_333/how_to_file_a_petition/media/FAA_UAS_Ci

vil_COA_Request.pdf (last visited Oct. 22, 2014). 104 Amazon Petition, supra note 24 (Amazon.com’s petition to be exempt from certain FAA regulations to

“conduct additional research and development for Prime Air . . . .”).

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Issues with Implementation

Causby Issues

When Congress enacted the ACA in 1926, it had the ability to recognize the importance of

aircraft in the future of American industry and commerce, much like Congress did with the FMRA

in 2012. Many of the problems that arose at the birth of the aircraft are again repeating themselves

with UAS. Causby defined the right to public use of airspace while still carving out some

protection and use for landowners.105 The problem with the Causby holding is what happens in the

airspace between the public domain, i.e. the regulated airspace, and the immediate reaches private

property; where do we draw the line now that sUAS will operate mostly within this airspace? The

battle of property interest versus commerce played out in the early twentieth century, and round

two is happening within the sUAS argument. These drones have the ability to take off from any

location, hover over a target, and land almost anywhere, meaning they can easily enter someone

else’s property. This freedom of flight may constitute a trespass if they are “so low and so frequent

as to be a direct and immediate interference with the enjoyment and use of the land,” as the planes

were in Causby.106 The aircraft in Causby were loud enough to scare chickens to death and

continuous because of the property’s proximity to a military airfield.107 sUAS are much quieter –

most only as loud as a vacuum cleaner108 – than full blown aircraft and will likely not frequent

over the same property because of their ability to take off vertically.

105 See Generally United States v. Causby, 328 U.S. 256 (1946). 106 Id. at 266. 107 Id. at 259. 108 Sdporchet, DJI Phantom sound levels, YOUTUBE (Mar. 28, 2013),

https://www.youtube.com/watch?v=0WcbyhGjr70 (video with example of the noise level of a consumer

sUAS that is available for purchase).

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There is also cause for worry given courts could hurt the sUAS industry by finding that

“the airspace immediately above the land would limit the utility of the land and cause a diminution

in its value.”109 Because many sUAS uses will often be within the immediate reaches of one’s land,

0 to 100 feet,110 the FAA needs to comment on the close proximity use to protect sUAS from a

new era air trespass doctrine. The FAA needs to comment on flights within 100 feet of the ground,

but should take a fairly hands off approach, allowing states to provide for stricter standards if they

choose. Close proximity flights should be allowed as long as they are conducted in a safe manner

and away from road and airways. As for direct damage caused by crashes, sUAS are relatively

light and any damage caused by them should be handled with civil claims and not be the subject

of over regulation. If low level flights of sUAS are strictly regulated, the full utility of sUAS will

never be realized.

Safety Concerns

There are two main safety concerns: air safety and link safety.111 Air safety is somewhat of

a concern because a 25 pound printer112 flying at 50 mph113 has the potential to cause serious injury

and property damage. Most sUAS will operate below 400 feet in uncontrolled, class G airspace,

making them a danger to public and property on the ground.114 Therefore, a major concern, and

109 Causby, 328 U.S. at 262. 110 100 feet should be a fair marker of within the immediate reaches of one’s land considering Causby

flights occurred at around 60 feet. Id. at 258. 111 Bennett, supra note 84 at 14-18.This writer refuses to address the ridiculous argument of terrorism by

drone. Model aircraft have been around for decades and any terrorist could have purchase a model aircraft

and equipped it as easy as a UAS. Any regulation aimed at terrorism will likely not help and hamper

industry growth. 112 See Rhett Allain, Physics of the Amazon Octocopter Drone, WIRED (Dec. 3, 2013),

http://www.wired.com/2013/12/physics-of-the-amazon-prime-air-drone (11.43 kg is a general estimate of

the Amazon drone weight). 113 Amazon Petition, supra note 24 at 1 (Amazon sUAS will make deliveries at about 50 mph). 114 National Airspace System Overview, supra note 15; Amazon Petition, supra note 24 at 5 (flights will

be below 400 feet).

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one recognized by Congress in the FRMA, is to “ensure that any civil unmanned aircraft system

includes a sense and avoid capability.”115 Thus, “[p]erfecting the ability of unmanned aircraft to

stay clear of other aircraft and avoid collisions is a prerequisite to enabling their use in unrestricted

airspace.”116 Small aircraft do not transmit electronic signals to identify themselves with other craft

and are not equipped to receive that information making this a difficult requirement to meet.117

The main hurdle with sUAS and sense and avoid (SA) is that sUAS are usually so small

that SA is too heavy to be used in conjunction with its other purposes, e.g. delivering a package.

Thus, the FAA will likely take a restrictive approach to sUAS and only allow daytime flights

within the line of vision of the operator.118 This would be a mistake. The major barrier to wider

sUAS use is that current FAA rules require the pilot of a UAV to maintain line-of-sight contact

with the aircraft; if that limitation is removed, and UAVs are integrated into civilian airspace,

analysts expect the market to grow rapidly.119 Unfortunately, the FAA will likely implement a

line of site limitation to the force the sUAS industry into developing sense-and-avoid technologies.

Some companies are developing and testing technologies currently, such as echolocation that uses

mini acoustic sensors (like a bat) and micro-radar to name a few.120

115 FAA Modernization and Reform Act §332(a)(2)(A)(ii). 116 General Atomics Readies for 'Detect and Avoid' Demo, NFLYERS (Sep. 6 2014),

http://blog.nflyers.com/component/content/article/39-plane-reviews/727-general-atomics-readies-for-

detect-and-avoid-demo-.html. 117 Bennett, supra note 84 at 16. 118 Id. 119 Patrick Marshall, The tech that will make drones safe for civilian skies, GCN (Jul. 12, 2013),

http://gcn.com/articles/2013/07/12/drone-uav-sense-and-avoid-technologies-civilian-airspace.aspx. 120 Valerie Insinna, Sense-and-Avoid System for Hobby Quadcopters, NAT’L DEF. MAG. (July 3, 2014),

http://www.nationaldefensemagazine.org/archive/2014/July/Pages/Start-UpDebutsSense-and-

AvoidSystemForQuadcopters.aspx (“Acoustic sensors are a good fit for small UAVs because they are

inexpensive and work in most environments . . . .”).

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However, the writer is not convinced that sense-and-avoid should be a concern for sUAS

at this time because a mid-air crash between two small flight objects is highly unlikely and civil

claims can adequately handle other damages. The only utility would be at sUAS delivery

distribution centers where multiple sUAS are coming and going, which will hopefully drive the

industry to develop these technologies to protect their own investments in aircraft. Further, a line

of sight limitation would destroy the delivery and surveying systems that many companies are

trying to implement, and stunt industry growth. Having a sUAS outfitted with GPS, auto-pilot, and

a camera to allow first person operation coupled with baseline safety procedures – e.g., staying at

least five miles away from the nearest airport – are more than adequate.

Additionally, there are concerns of link safety. There are concerns about hacking drones,

but the real danger is lost links.121 The link is the radio frequency that communicates the flight

commands to the drone, i.e. allows for the general control of the drone by an individual. Thus, if a

link is lost, a UAS would not be under any direct human control. Generally, if a link is lost, the

UAS should have “pre-programmed contingency procedures until the link is re-established or the

UAS ends the flight in a safe manner.”122 These procedures are often a hovering mode that keeps

the UAS in flight or a return home feature that flies to the starting location, but does not land.

However, there are different contingency procedures and the ability to program more; thus, the

concern for the FAA will be implementing “standardized procedures for UAS during loss of link

situations would increase the predictability of UA behavior for ATC [air traffic control]” or any

ATC equivalent implemented for sUAS.123

121 Bennett, supra note 84 at 18. 122 GEORGE MASON UNI., http://seor.gmu.edu/projects/SEOR-Spring12/UL2/ (last visited Oct. 22, 2014). 123 Id.

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State Privacy Laws

Overall, UAS have generated a greater interest among states to protect privacy rights. This

has gained traction with the ACLU, which supports state regulations focused on privacy rights.124

However, the main concern here is public use and not civil use, meaning there is a fear that

government agencies will use drones to impermissibly search for information. In 2013, 43 states

considered approximately 96 bills related to domestic drones, the vast majority of which pertained

to privacy.125 Many of these bills “require a probable cause warrant in order for law enforcement

to use a drone to gather evidence in a criminal investigation.”126 These regulations have come in

two main forms: bans on pre-textual flights and limits on data retention.127 Pre-textual flight

protections ban police from using information collected by a drone, absent a warrant or appropriate

exigency, as part of an application for a warrant.128 Data retention limits are imposed on

information gathered that is not evidence of a crime or part of an ongoing criminal investigation.129

The ACLU focuses its anti-drone campaign on law enforcement's use (and abuse) of UAS

technology, although the organization's phobia of police drones overall seeps into its and others’

views on commercial drones.130 State-level politicians, whether legitimately concerned about

social consequences from a new technology or simply gouging drone stigma for votes, have sprung

into action nationwide.131

124 Allie Bohm, The Year of the Drone: An Analysis of State Legislation Passed This Year, ACLU (Nov.

7, 2013), https://www.aclu.org/blog/technology-and-liberty/year-drone-roundup-legislation-passed-year. 125 Id. 126 Id. 127 See Id. 128 Id. 129 Id. 130 Nicholas Ryan Turza, Dr. Dronelove: How We Should All Learn to Stop Worrying and Love

Commercial Drones, 15 N.C.J.L. & TECH. ON. 319, 340 (2014). 131 Id.

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There are valid concerns given a helicopter looking into a backyard at 400 feet up is not a

search because there is no reasonable expectation of privacy to that space.132 However, it should

not be a major concern given the court also stated that “public use of altitudes lower than 400 feet-

particularly public observations from helicopters circling over the curtilage of a home-may be

sufficiently rare that police surveillance from such altitudes would violate reasonable expectations

of privacy, despite compliance with FAA regulations.”133 Thus, even if there is an FAA policy

allowing drones to fly within the potential “curtilage” of a home, flight that close would likely

qualify as a search requiring a warrant. Although an interesting argument could be made that if

commercial drone use becomes prevalent enough in the curtilage, the reasonable expectation of

privacy to the immediate airspace might vanish.

How can commercial drones abate these privacy issues? Unfortunately, flight in the

beginning will need pilots who observe their surroundings through video feeds. Therefore, privacy

issues become a concern if flight will entail flying through others’ property and curtilage. First, it

must be noted that those requesting a drone service will be inviting the drone onto their property,

thus, anything witnessed on that premises could likely be freely reported to the police. The main

concern is intruding on the privacy of others within that route. The best approach, which would

not hamper commercial UAS, are laws that require information gained by third party to conform

to the same UAS standards police are required to obey. Therefore, any data collected from drone

use without a warrant would be inadmissible. Another solution may be flight at altitude that does

not produce reliable picture of ground activities or does not attach a reasonable expectation of

132 Florida v. Riley, 488 U.S. 445, 446 (1989) (it is important to remember that search was with the naked

eye and the use of an image enhancing camera may change the issue). 133 Id.

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privacy. Or flight by GPS and then turning the camera on for the pilot to land the UAS, which

would also allow pilots to manage and “fly” more than one UAS at a time.

Whatever the solution may be, states, like the FAA, must be careful not to take a strict

approach to UAS regulation. The UAS industry will generate “more than 100,000 new jobs by

2025” and “states that create favorable regulatory and business environments for the industry and

the technology will likely siphon jobs away from states that do not.”134

International Comparison of UAS Regulations

The FAA needs to create a workable domestic framework to help the growth of the

domestic drone industry, and possibly one more favorable than other international markets. If the

FAA can accomplish this feat, it could help domestic UAS start-ups, one’s who do not have the

resources to traverse this regulatory limbo, and foster industry growth. One way to help make the

best possible framework is to compare various international UAS regulations and policies to see

how the FAA can better implement UAS regulations.135 Because the main utility of sUAS is under

400 feet, the comparisons will try to focus strictly on international regulations under that altitude.

This section will also devote a large portion to Australia because it is seen as the world leader in

UAS regulation and a system ready to foster industry growth.

United Kingdom

Across the pond, the United Kingdom (UK) shares many of the same policies and views

as the FAA. The UK’s Civil Aviation Authority (CAA) defines sUAS as aircraft that are 20 kg or

134 Jenkins & Vasigh, supra note 1 at 2. 135 UAS, UAV, and RPA will be used synonymously. The terminology across the globe is not the same,

but UAS is generally the all-encompassing term. Countries use some variation of UAS (unmanned

aircraft systems), UAV (unmanned aerial vehicles) or RPA (remotely piloted aircraft).

27

less and have regulations are “a little less stringent” than other UAS.136 The UK understands that

Boeing sized UAS need to stricter scrutiny than sUAS, something the FAA has not consistently

done. The CAA imposes a number of requirements for flight including maintaining visual contact,

remaining outside of airports (aerodromes), and at an altitude of no more than 400 feet.137 These

regulations are similar to the FAA and are fair limitations although not defined very well. Again,

the visual contact is an important part of the requirements and matches the FAA’s stance on current

UAS flights. Much like the FAA, there can be no sUAS flights for the purposes of “aerial work”

(i.e. you are getting paid for doing it), except with permission from the CAA.138 The UK also

seems to be behind in the UAS race. However, the FAA can make ground by implementing

requirements for flight outside of the operators line-of-sight and relaxing sense and avoid

requirements.

Canada

Canada’s UAS laws are fairly complex, and its individualized approval system seems like

it would be difficult for businesses trying to approve multiple UAS. In Canada, if UAS flight is

for commercial purposes, then it is no longer a model aircraft and strictly regulated as a UAV.139

The Canadian Aviation Regulations (CARs) provide that “[n]o person shall operate an unmanned

air vehicle [UAV] in flight except in accordance with a special flight operations certificate or an

air operator certificate.”140 The application for certification must include information detailing the

type and purpose of the operation, the date of operation, the UAS specs, a security plan for area of

136Small Unmanned Aircraft (20kg or less), CIV. AVIATION ASS’N,

http://www.caa.co.uk/default.aspx?catid=1995&pageid=16012 (last visited Oct. 22, 2014). 137 Id. 138 Id. 139 Flying an unmanned aircraft, TRANSP. CAN., http://www.tc.gc.ca/eng/civilaviation/standards/general-

recavi-uav-2265.htm (last updated Oct. 22, 2014). 140 Canadian Aviation Regulations (Aeronautics Act), SOR/1996-433§602.41, available at http://laws-

lois.justice.gc.ca/eng/regulations/SOR-96-433/FullText.html#s-602.41.

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operation, an emergency contingency plan, a general flight plan (diagram, aerial photos, charts,

etc.) including altitudes and routes to be used.141 Even if successful in obtaining certification,

Transport Canada imposes conditions to operation of the UAS, “such as maximum altitudes,

clearance from people and property, operating areas, and coordination with air traffic services.”142

While it may be burdensome to continually obtain certificates for operations, Transport

Canada – Canada’s FAA – has provisions to help alleviate this issue. First, it tries to process each

application within 20 days.143 Next, if the operator has proven they can operate the UAV safely,

Transport Canada may process new applications quicker (rubber stamp) or potentially approve

long-term certificates, but it gives no explanation on how to obtain long-term approval.144

Transport Canada claims it has approved 1,527 certificates between 2010 and 2013,145 but does

not state if any were long-term or how many were rubber stamped from frequent applicants. The

rubber stamp on frequent applicants and long-term approval for regular fliers are smart provisions

that should be implemented if the FAA requires individual UAS approval, however, hopefully the

FAA does not require individual approval. Canada is reviewing its current regulations, and while

it is ahead of the FAA in clarity, Canada is in the early stages and the FAA is not too far behind.

Australia

A. Advisory Circular 101-1(0) of 2002

141 Canadian Aviation Regulations, SOR/1996-433 §623.65(d). 142 Flying an unmanned aircraft, supra note 139. 143 Id. 144 Id. 145 Id.

29

“Australia’s looser regulations could help make it a commercial drone pioneer.”146

Australia’s Civil Aviation Safety Authority (CASA) was the first in the world to implement a semi-

comprehensive regulation in July 2002.147 This “advisory” was years ahead of its time and is more

comprehensive than the FAA’s policies implemented 12 years later. The rules to operate UAS are

more advanced than most countries and provide for out of sight operations – something the FAA

must do. If the flight is outside the operator’s line of sight, the operator must conduct the flight

within “the conditions specified in an approval issued by CASA; (b) in an approved operating area;

or (c) in a known traffic environment — in accordance with regulations governing the flight of a

manned aircraft.”148 The CASA also allow UAS to fly in controlled airspace with manned aircraft,

only requiring a flight plan be submitted; however, “[w]hen the operation of a UAV does not

involve flight higher than 400 ft AGL or within close proximity to an aerodrome, the operator may

exercise discretion in lodging flight notification.”149

The CASA also implemented a number of safety considerations. For collision avoidance,

the CASA only requires “sufficient visual cues to enable the acquisition and avoidance of other air

traffic . . .” (i.e., a video link or camera).150 If landing at an airport with manned aircraft, the UAS

must simply listen to the guidance of the air traffic control.151 There are also requirements for

emergency procedures. “The UAV flight plan should include information and procedures

146 Gwynn Guilford, Australia and China Are Way Ahead of Amazon in the Commercial Drone Race,

QUARTZ (Dec. 2, 2013), http://qz.com/152788/australia-and-china-are-way-ahead-of-amazon-in-the-

commercial-drone-race/. 147 Advisory Circular 101-1(0), CIV. AVIATION SAFETY AUTHORITY, at 1 (July 2002), available at

http://www.casa.gov.au/wcmswr/_assets/main/rules/1998casr/101/101c01.pdf (“Advisory Circulars are

intended to provide recommendations and guidance to illustrate a means but not necessarily the only

means of complying with the Regulations, or to explain certain regulatory requirements by providing

interpretative and explanatory material.”). 148 Advisory Circular 101-1(0) §5.5. 149 Advisory Circular 101-1(0) § 5.6. 150 Advisory Circular 101-1(0) § 5.7. 151 Advisory Circular 101-1(0) §5.9.

30

regarding pre-planned emergency flight profiles in the event positive data link control of the UAV

is lost,” such as autonomous transit to a pre-designated recovery area and abort procedures.152 If

the flights are over a populous areas (which are allowed), “the UAS flight plan should include

procedures to be followed in the event of: (a) engine failure; (b) loss of data link; (c) loss of control;

(d) failure of navigation; (e) airframe damage.”153

Additionally, the sUAS rules are more relaxed, especially in areas that are not considered

populous (unfortunately populous is not defined).

Provided that a small UAV is operated not above 400ft . . . and

remains clear of designated airspace, aerodromes [airports] and

populous areas, there are no restrictions imposed upon the operation

of a small UAV. The operator is responsible for ensuring that the

UAV is operated safely and remains clear of potential low level

traffic, structures, powerlines etc, except where operation in close

proximity is part of an operation authorised [sic] on the operator’s

operating certificate.154

However, sUAS require special authorization and certificate of airworthiness to fly in populous

areas and, more importantly, all commercial operations require approval from the CASA.155 The

CASA also seems to support civil remedies to incidents, suggesting liability insurance to protect

self and third parties from damages.

B. Current Standing of the Law

152 Advisory Circular 101-1(0) §5.10. 153 Advisory Circular 101-1(0) §6.7. 154 Advisory Circular 101-1(0) §7.1.1. 155 Advisory Circular 101-1(0) §12.2.1.

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The current regulations are just shy of perfect. First, the CASA stopped using the term

UAV, and implemented the all-encompassing UAS with its subset of RPAS (remotely piloted

aircraft systems).156 The CASA is currently reworking its Advisory Circular of 2002 to update

procedures and requirements.157 But for now, “[t]o fly an RPA of any size for commercial reward

you need an unmanned aerial vehicle (UAV) controller's certificate and an unmanned operator's

certificate (UOC) for your business.”158

A pilot/controller certificate only requires a “RPAS training course is provided by CASA

approved training organisations [sic] . . . .”159 A remote pilot certificate requires no aviation

experience, is focused only on permission to fly RPA, and can be obtained by any holder of a

UOC, which includes businesses.160 UOC are brilliant because they allow businesses with the

correct certification to train their own RPA pilots, and thus, quickly and easily maintain an

operational fleet. This approach also allows the CASA to be hands off and save resources by

shedding the duty of certifying thousands of potential RPA pilots. The FAA should fully adopt

this approach.

To obtain a UAV Operators Certificate, the business may be required to develop three

manuals: an Operations Manual, including a risk assessment; a Flight Manual; and a Maintenance

156 Project OS 11/20 - Review of Regulations and Guidance Material relating to Unmanned Aircraft

Systems (UAS), CIV. AVIATION SAFETY AUTHORITY,

http://www.casa.gov.au/scripts/nc.dll?WCMS:PWA::pc=PC_100532(last visited Oct. 24, 2014). 157 Id. 158 Model Aircraft and RPA, CIV. AVIATION SAFETY AUTHORITY,

http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD::pc=PC_100375(last visited Oct. 24, 2014). 159 Application For Remote Pilot Certificate/UAV Controller Certificate, CIV. AVIATION SAFETY

AUTHORITY, at 1, available at

http://www.casa.gov.au/wcmswr/_assets/main/download/new_cc_info_ver0_2aug13.pdf (last visited Oct.

24, 2014). 160 Id.

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Manual.161 It is also required to nominate a Chief Controller who will “need to be a certified remote

pilot/UAV controller for the type of RPA/UAV(s) that are planned to be operated.”162 The initial

cost of approval is $4000 with renewal fee of $480.163 The initial UOC is valid for 12 months, but

then valid for 3 years after each renewal. This allows companies to train their own pilots, which is

a worthwhile investment and an easy revenue stream for the CASA. However, there are still some

wrinkles in the process. If you want to operate an RPA outside of the default area (below 400 feet

AGL, outside controlled airspace, not over populous areas), you have to get an area approval from

the CASA,164 which requires a comprehensive risk assessment.165 Populous area flight also

requires a certificate of airworthiness for the UAS.166

Australia is more permissive for all UAS and sUAS uses, including commercial. Applying

for certification is relatively easy, allowing pilot certification with entities certified to do so (drone

pilot schools?). It is unknown if the CASA has a quick turn around with certification, but at least

its regulations are laid out in plain English and set up in a manner conducive for industry growth.

When the drone boom hits, Australia will be ready to take full advantage and the CASA can

regulate any issues as they arise. Australia may become a safe haven for UAS developers because

it only requires pilot certification for research and development, while the FAA is bending

161 Requirements for a UAV Operators Certificate, CIV. AVIATION SAFETY AUTHORITY, available at

http://www.casa.gov.au/wcmswr/_assets/main/download/requirements_uav_op_certificate.pdf (last

visited Oct. 24, 2014). 162 Id. 163 Id. 164 How to Become a Safe RPA Operator, CIV. AVIATION SAFETY AUTHORITY,

http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD::pc=PC_101985 (last visited Oct. 24, 2014). 165 Framework for Area Approval Submission for RPAS Operation , CIV. AVIATION SAFETY

AUTHORITY, http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD::pc=PC_100988 (last visited

Oct. 24, 2014) (the risk assessment must detail locations, dates, maps, airspace requirements, crew details,

whether within or beyond line of sight, impacts on safety, ground operations, and procedures for

emergency circumstances). 166 Advisory Circular 101-1(0) §12.2.3.

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companies over backwards to obtain exemption – not even certification. Because of Australia’s

experience and sensible regulations, Google has been conducting its research and development on

its UAS project in Australia, instead of traversing the uncertain mess of FAA policies.167 Just like

most corporations incorporate in Delaware because of its expertise in corporate law, UAS

companies may see Australia’s benefits and leave for bluer skies. Hopefully the FAA swallows its

pride and imitates an Australian system that is set up to help the industry thrive and evolve.

China

What would an international comparison be without America’s new measuring stick.

However, the writer was unable to locate any Chinese regulations on UAS, either by his inability

to read Mandarin or they simply do not exist. A lack of regulations might allow UAS operations

in China to grow more quickly than United States. However, reports suggest that “Chinese law

enforcement sources say that companies are free to operate drones once they attain the proper

permissions from regulators and local air-traffic control outfits”168 Civil UAS operations have been

limited to government departments or state-linked businesses.169 “Supervision of the mainland's

airspace is divided between the PLA [People’s Liberation Army] and the Civil Aviation

Administration, which is responsible for anything that doesn't fly higher than [3280 feet].”170 It is

unknown how permissive civil use is or the certification requirements. A Chinese company

InCake’s, which used drones to deliver dessert, was shut down by the local civil aviation

167 Madrigal, supra note 23 (“Australia’s ‘remotely piloted aircraft’ policies are more permissive than

those in the United States.”). 168 Connor Sheets, China Beat Amazon Prime Air To The Commercial Drone Delivery Market, INT’L

BUS. TIMES (Dec. 2, 2013), http://www.ibtimes.com/china-beat-amazon-prime-air-commercial-drone-

delivery-market-1491636. 169 Id. 170 Id.

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authorities and the police.171 However, it may vary province to province and potentially affected

if the use is in connection with a state-business.

Impact on the FAA

How will these international regulations effect the FAA’s rule making process? Hopefully

they serve as a wake-up call given the U.S. is behind most countries in civil UAS certification. Are

these countries’ regulations better than what we have in place? Most definitely. The FAA’s current

combination of policies, regulations, and haphazard rules are either too restrictive or confusing,

which is never a winning combination for industry growth. The U.S. needs to look to other

countries and learn from their successes and mistakes. The FAA needs to use the Australia

framework because its clear and relaxed regulatory regime is set up for a reasonable level of safety,

business certification and quick non-governmental pilot certification, out of sight operations, and

relaxed sense and avoid requirements. The FAA needs to relax its policies before it cripples

growth. The FAA can also potentially surpass Australia in some areas, especially with rules that

govern semi-autonomous or completely autonomous drones and further streamline the certification

process, particularly in online applications.

Conclusion

The FAA needs to implement a clear, concise, and permissive UAS integration plan to

foster a multi-billion dollar industry. While there may be bumps along the way with permissive

regulation, the benefits far outweigh the dangers and it will help the U.S. to better compete in the

international UAS market. Taking after Australia’s CASA, the FAA should certify businesses as

centers for individual pilot certification. This approach takes the bureaucratic oversight and

171 Id.

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overhead out of the picture. Australia realized the potential commercial applications of UAS and

quickly implemented a framework for all to understand what is allowed with UAS use. The FAA

has taken the opposite approach. The protective actions of the FAA – fining individuals for

commercial uses – does not breed hope for open skies; but worse, this capricious, protective veil

has confused commercial entities simply seeking to test and develop UAS. Applying for

certification is not easy, and although it has become easier, the process needs to be simpler and

quicker. While larger companies may have the resources to traverse this unstable regulatory

landscape, smaller start-ups are left will either waste man hours figuring out the law or simply

ignore the rules. Neither of which is an outcome the FAA should be satisfied with. The FAA is the

main problem, lacking transparency and urgency in the rulemaking process. A lethargic attitude

towards promulgating a framework will end up hurting the domestic UAS industry, stunting

growth before it has a chance to blossom.