Unmanned Aircraft Systems ("UAS" or "Drone")

On July 20, 2018, the Federal Aviation Administration (“FAA”) issued a Press Release unequivocally clarifying its views of the distribution of regulatory authority between federal and local governments with respect to the operation of aircraft, and, more specifically, unmanned aircraft systems (“UAS” or “drones”).  “Congress has provided the FAA with exclusive authority to regulate aviation safety, the efficiency of the navigable airspace, and air traffic control, among other things.  State and local laws are not permitted to regulate any type of aircraft operations such as flight paths or altitudes or the navigable airspace.”

The FAA’s position is not new, but arises directly from the Federal Aviation Act (“FAA Act”), 49 U.S.C. §§ 40103(a)(1) [“The United States government has exclusive sovereignty over the airspace of the United States”], and 49 U.S.C. § 47524(c)(1)(A)-(E), enacted as the Airport Noise and Capacity Act of 1990, which prohibits local limitations on Stage 3 aircraft operations in the absence of approval by the Secretary of Transportation and all aircraft operators at the relevant airport.

This seemingly spontaneous reiteration of Congress’ and the agency’s long held positions comes not without provocation.

Continue Reading FAA Stands Firm in Defense of Federal Preemption of Airspace Regulations

On July 6, 2018, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) conclusively rejected a comprehensive challenge to the authority of the Federal Aviation Administration (“FAA”) to promulgate regulations governing that subset of unmanned aircraft systems (“UAS”) defined in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95 (codified at 49 U.S.C. § 40101, note) (“FMRA”), as “model” aircraft, i.e., those “flown for hobby or recreational purposes.”  FMRA, § 336(c)(3).

In Taylor v. FAA, D.C. Cir. No. 16-1302, the court upheld FAA regulations implementing FMRA § 336, Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed.Reg. 42064 (June 28, 2016), which effectively subjects small UAS (up to 55 pounds, FMRA, § 336(c)(3)), to similar, if not identical, safety standards to those applicable to commercial UAS.

Continue Reading Appellate Court Affirms FAA Control Over Recreational Drones

On or about November 16, 2017, the United States Senate acted speedily to pass the “National Defense Authorization Act for Fiscal Year 2018,” H.R. 2810 (“Defense Reauthorization Act”), originally introduced in January of 2017, and now awaiting signing by President Trump.  

The Senate’s motivation is not obscure, where it sets forth, among other things, guidelines for “Collaboration Between Federal Aviation Administration and Department of Defense on Unmanned Aircraft Systems,” or UAS, H.R. 2810, § 1092.  Most notably, that section re-imposes rules originally imposed on the operators of small, unmanned aircraft, weighing between .55 and 55 pounds, used for recreational purposes (“model” aircraft).  Those rules were set aside by the United States Court of Appeals for the District of Columbia Circuit in May, 2017, in the published opinion Taylor v. Huerta, 856 F.3d 1089, 1093 (D.C. Cir. 2017), on the ground that the FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95 (“FMRA”) specifically prohibits FAA from promulgating “any rule or regulation regarding model aircraft.”  Id. at § 336(a).  
 
Congress has now enacted a revision to FMRA’s prohibition, and thrown model aircraft back into the regulatory arena.  

Continue Reading Operators of Small Unmanned Aircraft Uses for Recreational Purposes Will Soon Face Regulation

Today, the Federal Aviation Administration (“FAA”) announced the finalization of its long-awaited Final Rule governing routine commercial operation of unmanned aircraft systems weighing 55 lbs. or less.  The new 14 C.F.R. Part 107 will become effective 60 days from the date of its publication in the Federal Register, which is likely to happen this week or next.

Below is an explanation of how the new Part 107 will affect entities that have already received a Section 333 exemption, followed by a summary of the new operational requirements and restrictions:
 
Section 333 Exemption Holders Get Best of Both Worlds: “Grandfathered” Compliance Status and the Option to Take Advantage of the New Rules
 
In the Final Rule, the FAA was careful to protect Section 333 exempt entities from the burden of complying with an additional layer of regulations.  Instead, Section 333 exemption holders will be “grandfathered” into compliance, as explained by the FAA below:
 
“The FAA clarifies that current section 333 exemptions that apply to small UAS are excluded from part 107. The FAA has already considered each of these individual operations when it considered their section 333 exemption requests and concluded that these operations do not pose a safety or national security risk.
 
The FAA recognizes, however, that there may be certain instances where part 107 is less restrictive than a section 333 exemption. Therefore, under this rule, a section 333 exemption holder may choose to operate in accordance with part 107 instead of operating under the section 333 exemption. This approach will provide section 333 exemption holders time to obtain a remote pilot certificate and transition to part 107. Operations that would not otherwise fall under part 107 may not take advantage of this option. For example, an operation with a section 333 exemption that does not fall under part 107, such as an operation of a UAS weighing more than 55 pounds, would not have the option of operating in accordance with part 107 rather than with its section 333 exemption.
 
Additionally, when section 333 exemptions come up for renewal, the FAA will consider whether renewal is necessary for those exemptions whose operations are within the operational scope of part 107, which also includes those operations that qualify for a waiver under part 107. The purpose of part 107 is to continue the FAA’s process of integrating UAS into the NAS. If a section 333 exemption is within the operational scope of part 107, there may be no need for the agency to renew an exemption under section 333. Because the FAA’s renewal considerations will be tied to the outstanding section 333 exemptions’ expiration dates, a 3-year transition period is not necessary. This will not affect those section 333 exemptions that are outside of the operational scope of part 107 or where a part 107 waiver would not be considered.”  
(Final Rule, Pages 83-84.)
 
Thus, for Section 333 exemption holders, the result is the best of both worlds.  On the one hand, Section 333 exempt entities are not required to modify their current commercial drone operations to comply with the new regulations.  On the other hand, if a Section 333 exempt entity identifies an opportunity to perform certain operations under less stringent restrictions promulgated in the new Part 107, it may “choose to operate in accordance with part 107 instead of operating under the section 333 exemption.”
 
Here is the FAA’s Summary of the new operational limitations, Pilot in Command and certification responsibilities, and aircraft requirements:
 
 

Continue Reading FAA Releases New Commercial Drone Regulations, Section 333 Exemption Holders Get “Grandfathered” Compliance Status

On April 19, 2016, the full Senate of the United States passed the “Federal Aviation Administration Reauthorization Act of 2016” (“FAA Act”), which had been previously passed by the full House of Representatives in February, 2016.  The FAA Act contains several notable provisions, the first of which, Section 2142, regarding federal preemption of local drone regulations, was approved by the Senate Commerce, Science and Transportation Committee on March 17, 2016, and reported in this publication on March 31.  

The FAA Act, as finally approved by the Senate, devotes substantial additional space to unmanned aircraft systems (“UAS”), and, most notably for this purpose, Section 2141, “Carriage of Property by Small Unmanned Aircraft Systems for Compensation or Hire.”  (Section 2141 will be codified in the main body of the legislation at Section 44812.)  That provision was clearly authored by Amazon, which has made considerable noise about the capability of UAS to deliver its products expeditiously and at low cost.  The FAA Act gives the Secretary of Transportation two years to issue a final rule authorizing the carrying of property by operations of small UAS within the United States.  
 
The requirement for the contents of the final rule is, however, clearly specified in the Act.  
 

Continue Reading Senate Bill Approves Package Delivery by Drone

On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).  

Federal preemption is the displacement of state and local laws which seek to govern some aspect of a responsibility that Congress views as assigned by the Constitution exclusively to the federal government.  Preemption by statute is not uncommon in legislation dealing with transportation, and its relationship to interstate commerce.  For example, the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, specifically “preempts” local attempts to control “prices, routes and service” of commercial air carriers by local operators or jurisdictions.  Similarly, the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”) preempts local efforts to establish airport noise or access restrictions.  The Senate’s current amendments, however, appear, at the same time, broader in scope, and more constrained by exceptions than previous legislative efforts.  They also hit closer to home for the average American concerned about the impact on daily life of the proliferation of UAS for all uses, including, but not limited to, the delivery of packages.  
 

Continue Reading Senate Version of Federal Aviation Administration Reauthorization Preempts Local Drone Regulations

Apparently impatient with the Federal Aviation Administration’s (“FAA”) slow progress in developing rules governing the commercial operation of unmanned aerial vehicles (“UAV” or “drones”), Senators Cory Booker (D-NJ) and John Hoeven (R-ND) introduced in Congress legislation to expedite implementation of rules governing the commercial operation of drones.  

Supported by a host of interest groups, ranging from the Association for Unmanned Vehicle Systems International to the National Association of Broadcasters and Information Technology and Innovation Foundation, the stated purpose of the “Commercial UAS Modernization Act,” S.1314 (“Act”) is to amend the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95), to create an interim rule providing basic guidelines for commercial use and testing of small UAS during the period within which FAA finalizes rules governing the operation of commercial UAS.  The Bill allows any person to “operate a small unmanned aircraft for commercial purposes without an airworthiness certificate within the United States, subject to the requirements under subsection (b) and the operating restrictions under subsection (c) during the period beginning on the date of the enactment of this Act and ending on the effective date of a final rule based on the Notice of Proposed Rulemaking Operation and Certification of Small Unmanned Aircraft Systems (80 Fed. Reg. 9544, February 23, 2015).” The Bill’s general requirements include: (1) liability insurance; (2) registration/certification under section 3(a) of the Act; and (3) the operator’s passing of an “aeronautical knowledge test,” Act, subsection (b)(3)(A), as prescribed by FAA in its February 2015 notice.  
 
The permission granted under the proposed legislation is not without limits, however.  
 

Continue Reading Congress Seeks to End Run Federal Aviation Administration on Drone Rules

California legislators are taking advantage of the continuing absence of federal regulation of unmanned aircraft systems (“UAS” or “drones”), and the provisions of the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FMRA”), allowing state and local governments to regulate drone operation in the absence of federal regulation.  Between the start of the new California legislative session, through February 27, 2015, the last day for Bills to be submitted, legislators introduced five Bills.  The most comprehensive of these is AB37, introduced by Assemblymember Campos, and referred to the Assembly Committee of Public Safety, Civil Procedure and Privacy.

Continue Reading California State Lawmakers Move to Regulate Drones

In a landmark decision for film and production companies, the Midwest of the United States, and the unmanned aircraft systems industry, Buchalter Nemer’s Aviation and Aerospace Practice Group made history last week when it secured a Grant of Exemption issued by the Federal Aviation Administration authorizing film and production company Picture Factory, Inc. to operate camera-mounted drones for the purpose of aerial filming and photography.  Picture Factory, Inc. is the first production company in the Midwest to receive a Grant of Exemption allowing commercial filming operations using drones in U.S. airspace.

“We’re proud to offer yet another cutting-edge way to give our clients unique perspectives and moving camera shots from places otherwise impossible to reach,” said Craig Peterschmidt, co-founder of Picture Factory.
 
The FAA’s Grant of Exemption was issued in response to Picture Factory’s Petition for Exemption under Section 333 of the FAA Modernization and Reform Act of 2012, which provides a procedure for expedited authorization of commercial operations using unmanned aircraft systems weighing no more than 55 pounds.  Picture Factory was represented by attorney Paul Fraidenburgh in Buchalter’s Orange County, California office.  Mr. Fraidenburgh has gained a national reputation for his representation of clients in the unmanned aircraft systems industry.  The Wall Street Journal, Los Angeles Times, and several other publications have quoted Mr. Fraidenburgh on the topic of unmanned aircraft systems, and his clients are among the most cutting-edge aerial filmmakers and aviation companies in the world.  He can be reached at (949) 224-6247 or pfraidenburgh@buchalter.com.
 

On February 15, 2015, the Federal Aviation Administration published its highly anticipated Notice of Proposed Rulemaking (NPRM) on the Operation and Certification of Small Unmanned Aircraft Systems (applicable to UAS weighing 55 lbs. and less).  The proposed rules would add a new Part 107 to Title 14 Code of Federal Regulations to allow for routine civil operation of small UAS in the National Airspace System (NAS).  Although a lengthy comment and revision period is expected to delay finalization of the regulations for another 18-24 months, Section 333 of the FAA Modernization and Reform Act of 2012 will continue to provide a procedure for expedited authorization of commercial small UAS operations in the interim.  The final Part 107 will serve as the foundation for a multi-billion dollar UAS industry in the United States. 

Continue Reading FAA Releases Proposed Rules for Commercial Drones; White House Launches Drone Privacy Policy