Matthew Berard on evolution of drone law
By Steve Thorpe
Legal News
The year 2016 began with almost no federal regulations on Unmanned Aircraft Systems (UAS), better known as drones. As we near the end of the year, a solid body of law is finally emerging on the topic. Matthew Berard is an associate at Bowman and Brooke LLP practicing product liability litigation with a strong focus on automotive, aviation and drone law. As an FAA certified private pilot, he leverages his flight knowledge and technical training to defend major product manufacturers in complex product-related claims.
Thorpe: Tell us about FAA Part 107.
Berard: There are a variety of Federal Aviation Regulations (FARs) governing different aspects of aviation. Part 107 went into effect on Aug. 29, 2016, and is the section of the FARs that govern small (under 55 pounds) Unmanned Aircraft Systems (UAS) for non-hobbyists. Part 107 has long been anticipated by commercial UAS operators because, prior to it going into effect, commercial operations were permitted only if the operator obtained a Section 333 waiver. UAS can still operate under Section 333 waivers, but Part 107 permits commercial operations subject to those regulations without the need to complete an application and then wait for the FAA to grant a Section 333 waiver to operate for commercial purposes.
Thorpe: Give us some of the primary rule differences and requirements between hobby and commercial operations.
Berard: One of the main differences between hobby and commercial operations is the requirement for the operator of commercial UAS to be licensed with the FAA. Part 107 requires the pilot to have a remote pilot airman certificate with a small UAS rating. To obtain this certificate, the pilot must pass a knowledge test and comply with other requirements. Pilots with a license to operate manned aircraft would also need to obtain a remote pilot certificate, but there is a separate process for that.
Conversely, hobbyists can fly UAS for recreation without the need to obtain a license. Another difference is that hobbyists are subject to somewhat different airspace restrictions. For instance, hobbyists are prohibited from flying UAS within five nautical miles of any airport without air traffic control approval. Commercial operators, however, are permitted to operate near certain airports (depending on the class of airspace that surrounds it) without air traffic control approval.
Nevertheless, commercial operations still require an FAA waiver and air traffic control approval in certain classes of airspace around busier airports.
Thorpe: With the rollout of Part 107, the FAA is taking heat from two directions. Some think it is too restrictive and others think it doesn’t go far enough. How does the actual rule measure up to what you expected?
Berard: At first glance, I was somewhat surprised that the FAA permitted commercial UAS operations in Class G airspace as this would permit operation right next to certain airports (and there are more of these airports than you might realize). As a pilot, there is enough to consider while flying a manned aircraft and the possibility of a midair collision with a UAS in the immediate vicinity of an airport is just another distraction. However, the license requirement for commercial UAS operators appears to address that concern. In theory, those flying near certain airports for commercial purposes are licensed and, thus, understand airspace rules, altitude restrictions, traffic patterns, and have the same obligation to “see and avoid” other aircraft.
My concern is one of perception: a UAS can be used for commercial purposes one day, and yet the same UAS can be flown for recreational purposes the next. To untrained hobbyists, they may see a UAS flying next to an airport and not realize that the operator is FAA certified and operating under Part 107. This may present a problem if those hobbyists later fly in the same area, believing it to be acceptable but not recognizing that they are interfering with operations of manned aircraft.
Nonetheless, there was significant delay in enacting Part 107 and it is generally a good thing to have some concrete regulations in place as a starting point. Part 107, however, will certainly not be the same in five years based on what incidents occur in the future and as technology evolves.
Thorpe: How seriously is the FAA enforcing the new rules? I saw a comment from one operator who said that he posted a video on YouTube and the FAA called him the next day.
Berard: The FAA has limited resources to investigate or enforce any potential FAR violations, whether commercial operations or hobbyists violating restricted airspace. The FAA acknowledges that local law enforcement agencies are in the best position to deter, detect, immediately investigate, and, as appropriate, pursue enforcement actions to stop unauthorized UAS operations. I believe the FAA takes FAR violations very seriously, having issued a number of Notices of Proposed Assessment to operators of UAS for FAR violations. These Notices propose fines and, in some cases, license suspension/revocation in accordance with the FAA’s philosophy for using various remedies as established in the FAA’s Compliance and Enforcement Program.
Generally, the FAA’s attitude toward enforcement of FARs is to educate rather than punish but it is unclear how many enforcement actions have been initiated under Part 107. However, prior to Part 107 going into effect, the FAA imposed fines ranging from $400 to $1.9 million for unauthorized UAS operations. Depending on the seriousness of the offense, the penalties could be higher for a commercial UAS operator (who is licensed and should know better) than a hobbyist who, for instance, might have inadvertently flown four miles away from an airport.
Thorpe: What do you expect next on the drone law front?
Berard: On the horizon, I expect there to be further clarity about privacy considerations involving UAS. Some states and local governments are attempting to regulate airspace, but that may involve issues of federal preemption. Along these lines, I look forward to the resolution of Boggs v. Merideth. You may recall this case from the news that is about a Kentucky man (Meredith) who shot down a UA operated by Boggs that was flying over Meredith’s property. Boggs filed a declaratory judgment action determine, in part, whether that the UA was in legally navigable airspace subject to the exclusive jurisdiction of the United States and whether operating a UA over one’s property violates any reasonable expectation of privacy. The matter is still pending, but it raises one of the key issues surrounding UAS operations.
I also expect to see further development of “geofencing” technology which is the capability of the UAS to recognize the airspace around it and create virtual fences to avoid crossing into restricted airspace. While there is currently no such requirement, I could see this being included in the FARs in some form as the technology evolves.
Thorpe: If a friend or family member is considering a drone purchase for the holidays, would your advice be different this year from last?
Berard: My advice is to not simply treat a UAS as a toy, but to consider it as an “aircraft,” subject to FAA regulations. Regardless of whether one flies for recreation or business, operating an aircraft in the National Airspace System – even if only 100 feet over your backyard – invokes certain responsibilities and potential consequences. Particularly if you are giving a UAS to a child, you need to know where that UAS is being operated and monitor its use. Anybody who gives or receives a UAS this year should visit the FAA website and read about the registration and operation requirements. Flying a UAS is not as simple as charging the batteries and taking off. Indeed, UAS operators need to be aware of the FAA regulations that apply to them and that they must comply with all other obligations to ensure safe flight.
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