This edition of the Cozen O’Connor Drone Report discusses the D.C. Circuit Court’s decision against the FAA’s registration requirements for recreational drones, the latest findings and recommendations of the FAA’s Drone Advisory Committee, FAA Administrator Huerta’s recent statement on drone safety, and the introduction of the Drone Federalism Act of 2017 in the U.S. Senate.

Judicial

D.C. Circuit Court Rules That Recreational Drone Operators Are Exempt from FAA Aircraft Registration Rules

The U.S. Court of Appeals for the District of Columbia ruled that recreational unmanned aircraft system operators are exempt from the FAA’s rules requiring the registration of small drones. The FAA’s small drone regulations, which went into effect in December 2015, required all operators of small drones, including recreational operators and hobbyists, to comply with the FAA’s specialized aircraft registration and identification rules, as well as pay a registration fee. More than 750,000 operators have registered their drones since the 2015 rules went into effect. The FAA estimates 2.3 million drones will be sold in 2017 for recreational purposes, with another 2.5 million drones sold for commercial use. The lawsuit was brought by recreational drone enthusiast John Taylor, who owns a fleet of approximately 20 quadcopters, hexacopters, and fixed-wing planes. Taylor argued the FAA lacked authority to regulate recreational drones. The court agreed, reasoning that section 336 of the FAA Modernization and Reform Act of 2012 specifically exempted “model aircraft,” including recreational drones, from regulation. The court stated that “statutory interpretation does not get much simpler.” Commercial operators are still required to register their drones with the FAA. In response to the D.C. Circuit’s ruling, a bipartisan group of U.S. Senators introduced the “Safe DRONE Act of 2017,” which would grant the FAA specific statutory authority to reimpose the drone registration requirement on recreational operators.

Regulatory

FAA Drone Advisory Committee Makes Task Group Interim Recommendations

The FAA’s Drone Advisory Committee (DAC) held its third general meeting on May 3, 2017, where each of the committee’s task groups presented current findings and its interim recommendations. DAC, a federal advisory committee comprised of both private and public sector UAS community stakeholders, is working to develop best practices for drones to operate safely in the National Airspace System. DAC task groups have been assigned to develop consensus-based safety recommendations to the FAA. Both Task Group 1 and Task Group 2 are required to submit to the FAA a final report on their recommendations by October 2017 and Task Group 3’s funding-related report is due by March 2018. A virtual meeting of DAC is scheduled for July 21, 2017, and the next in-person meeting is scheduled for November 8, 2017.

DAC Task Group 1 is evaluating the appropriate roles and responsibilities of state and local governments working in conjunction with FAA, including the identification and establishment of a “low-altitude airspace” boundary line that would separate airspace subject to FAA jurisdiction from lower-level airspace that could be subject to state and local government jurisdiction. This task group is also responsible for drafting recommendations concerning state and local government enforcement and training of local officials regarding drone operations. Although progress has been made by Task Group 1, it is still in the fact-finding stage and is seeking additional input on a cooperative framework from both local governments and law enforcement.

DAC Task Group 2 is responsible for drafting recommendations on how to expand the scope of drone operations beyond the current permitted operations within the National Air Space. Its recommendations will include how to use public and private infrastructure in the expansion of drone operations and suggestions on rulemakings addressing operational issues, such as those regarding possible expansions of drone operations in specific classes of airspace not currently authorized. The interim recommendations include prioritizing UAS operations beyond visual line-of-sight, test use of commercial cellular networks for low altitude drone operations, and creating “technology-neutral performance requirements.”

DAC Task Group 3 has been delegated the responsibility of recommending a method of funding federal services to support drone operations for both the short term and long term. Due to the longer time frame allowed for Task Group 3, it is still collecting feedback from the overall DAC and input from subject matter experts. It will report on its activities and recommendations at the upcoming virtual meeting.

FAA Administrator Huerta Addresses Drone-Related Issues at AUVSI Xponential Conference

At the recent Association for Unmanned Vehicle Systems International (AUVSI) Xponential conference, FAA Administrator Michael Huerta presented a speech focused on potential issues facing the drone industry and steps being taken to develop solutions to address safety and security concerns posed by drone operations. He emphasized the need to delineate the varying roles of federal, state, and local governments in overseeing and regulating UAS operations. In addition, Huerta stated that the FAA is continuing to work on the much anticipated “drones over people” proposed rule. He declared that drone safety issues are significant points of concern and that the FAA has many concurrent activities and groups currently looking into drone safety issues. For example, the FAA’s Center of Excellence is studying what may happen if a drone hits a person on the ground and the ramifications if a drone were to collide with a manned aircraft. The FAA is also collaborating with the U.S. military and law enforcement to determine security concerns surrounding drones. Administrator Huerta emphasized the creation of a new Aviation Rulemaking Committee to aid in developing standards to identify remotely and track drone operations. He mentioned that drone operations in the United States continue to expand rapidly, with more than 43,000 Remote Pilot Certificates having been issued under the FAA’s Part 107 regulations, approximately 60,000 commercial operators having registered their drones, and the FAA has published more than 200 UAS facility maps.

Congressional Action Impacting Drones

Drone Federalism Act of 2017 Introduced In the Senate

On May 25, 2017, a bipartisan group of U.S. senators introduced the “Drone Federalism Act of 2017” to “preserve State, local and tribal authorities and private property rights with respect to unmanned aircraft systems.” This bill would require the FAA to define the scope of federal preemption in the area of drone regulation and oversight, limiting it to “the extent necessary to ensure the safety and efficiency of the national airspace system for interstate commerce.” States would not be prohibited by federal preemption from regulating some aspects of drone operations, such as to protect public safety, personal privacy, and property rights. A similar bill titled the “Drone Innovation Act of 2017” was introduced to the U.S. House of Representatives on June 16, 2017. In 2017 to date, 14 states have passed legislation related to drones. In addition, proposed legislation has been introduced in 38 states for consideration during the 2017 legislative season. In 2016, 18 states passed laws, and a total of 45 states considered legislation relating to drones. State legislation relating to drones covers a wide range of topics, including limiting local governments’ ability to regulate drones, environmental concerns, and privacy issues.