ASKED & ANSWERED: Peter Tolley on 'Drone Law'

 By Steve Thorpe

Legal News
Some law firms are creating “drone law” practice groups in anticipation of explosive growth in the use of unmanned aircraft. Hundreds of companies are designing and building drones and trying to market them, but are running into hurdles because the government has yet to create regulations governing the devices. The FAA estimates there could be as many as 7,500 small commercial drones in use in the U.S. by 2018. Peter Tolley of Foster Swift Collins & Smith PC focuses his practice in the areas of Aviation, Commercial Litigation, Construction Law, Insurance Law and Personal Injury Litigation. He is a member of the State Bar of Michigan Aviation Section, the NTSB Bar Association, the International Society of Air Safety and the Lawyer-Pilot Bar Association. Tolley also has a commercial pilot’s certificate and has flown professionally as a corporate chief pilot.
Thorpe: The law firms of LeClairRyan of Richmond, Va., and McKenna Long & Aldridge of Atlanta, Ga., recently created “drone law” practice groups. Prescient or premature?
Tolley: Industry publications indicate that UAS (Unmanned Aircraft Systems) is going to be big, very big, so ramping up a legal practice group to offer service to that industry makes sense. This is especially true since there is not much "drone law" out there yet. In passing the FAA Modernization and Reform Act of 2012, Congress directed the FAA to promulgate regulations by which the  use of UAS could be integrated into the National Airspace System. The FAA has not done so yet.
In 1981 the FAA issued Advisory Circular 91-57 which discusses the operation of model aircraft. An A/C is not regulatory, but advisory. It essentially exempts model aircraft from the FARS as long as it is less than 55 pounds, is operated below 400 feet AGL (Above Ground Level), kept in sight, and with certain notice provisions to ATC if operated near an airport.
The present Regulatory System only permits UAS operation by Public Organizations (government, law enforcement and research). Private or Civil users need an Experimental Airworthiness Certificate (none issued to date). So we continue to await the FAA Regulations regarding the operation of UAS.
Thorpe: The FAA has indicated that it plans to issue proposed rules regulating small civil unmanned aircraft later this year. What might we see in those rules?
Tolley: The problem with promulgating rules for small UAS is that not all of the technology to make it safe to operate UAVs in the National Airspace System exists yet. If we want to integrate rather than separate, we have to consider safety of existing users first. Presently UAS operation is prohibited in Class B airspace. The problem is that technology has not caught up with all of the requirements to safely integrate UAS operation in the National Airspace System. Currently, in order to avoid mid-air collisions, pilots are required by the FARs to "see and avoid" each other. Compliance with this regulation is difficult without a pilot on board the aircraft.
Furthermore, the size of the UAV does not have to be that large to present a serious threat to conventional aircraft. We all know what a couple of Canada geese did in the "Miracle on the Hudson." If the goal is to integrate rather than separate, the early regulations will likely restrict when and where UAS may operate and probably include strict notice requirements to the other users of that airspace.
Thorpe: The FAA and the National Transportation Safety Board (NTSB), the government’s two main bodies involved in aviation, have scuffled over the issue of regulating drones. Tell us about that.
Tolley: The NTSB  and the FAA scuffle about many things. Their missions are different. The NTSB investigates and recommends changes in order to enhance safety. The FAA is charged with regulating and managing the whole National Airspace System. The NTSB looks at a safety problem and then makes recommendations to hopefully prevent reoccurrence. The FAA, on the other hand, must comply with administrative procedures in making new rules. The FAA has to solicit input from various stakeholders, and frequently compromises and adjustments are made. In other words, the NTSB can recommend from its "ivory tower," but the FAA has to manage the whole thing which involves competing interests. Therefore, from time to time, those two agencies will scuffle.
Thorpe: The FAA has always had the somewhat contradictory dual roles of promoting aviation and regulating aviation. How might that play out here?
Tolley: The FAA''s dual role of Regulating on the one hand and promoting aviation on the other does result in internal conflict from time to time. As noted in comparing the  NTSB and the FAA,  different missions can cause conflict. The result is that compromise and adjustment will have to occur when the promotion of aviation (deployment of UAVs) conflicts with the regulatory role (to keep the users safe). Just because we can do something (fly drones in the National Airspace System, at the urging of one group), does not mean that we should do it if we cannot do it safely. We need the technology (e.g. "see and avoid") to catch up with safety considerations.
Thorpe: Without getting too technical, what might be the legal implications of operating a drone in controlled versus uncontrolled airspace?
Tolley: Regardless of whether the airspace is controlled or uncontrolled, the party exercising operational control over the UAS will be legally obliged to comply with all applicable regulations and good practices. Just as with conventional aircraft, if you err and violate a regulation and cause injury or damage, you will be legally accountable. Furthermore, future regulations on UAS operation will include privacy considerations, and these have not been fully developed yet.
However, the status of the FAA to regulate UAS/UAV use was put in chaos on March 6, 2014, when NTSB ALJ, Patrick G. Geraghty issued his opinion in The Administrator v. Pirker, in which he held that the FAA had no authority to regulate, and reversed an Order of Assessment against Pirker for allegedly violating various FARs. The FAA has appealed that decision to the full NTSB.