Authors: Attorney John C. Mitby & Law Clerk Sarah E. Schuchardt
Drones continue to grow in popularity and are available to buy for both professional and recreational use. As popularity has increased, state, local, and federal governments have been tasked with formulating regulations to govern drone usage. The Small Unmanned Aircraft Rule, also known as Part 107, took effect on August 29, 2016. This Rule provided that unless small Unmanned Aircraft System (UAS) operators receive a Section 333 exemption, they must operate in accordance with Part 107. Under Part 107, people operating a small UAS must obtain a remote pilot certificate with a small UAS rating.
In order to obtain a remote pilot certification, the person must be vetted by the Transportation Security Administration, be at least 16 years of age, and demonstrate aeronautical knowledge by either passing the FAA initial aeronautical knowledge test or, for people who already have an FAA-issued pilot certification that is not a student certification, have completed flight review within the previous 24 months and have also completed a small UAS online training course. Recreational and hobby users were not affected by Part 107.
The government has since made further efforts to regulate unmanned aircraft systems through the Unmanned Aircraft System Integration Pilot Program. The Program was initiated by a memorandum issued by the President to the Secretary of Transportation on October 26, 2017, which directed the DOT to establish the Program by January 2018. The Secretary must partner with at least five local, state, or tribal governments within 180 days after the pilot program is established. In order for a state, local, or tribal government to be eligible, it must be prepared to begin integration of UAS operations within its jurisdiction within 90 days after selection. The Program allows state, local and tribal governments to partner with private businesses in order to submit proposals for UAS test projects that operate below 400 feet. The DOT and the FAA will then review the proposals and select five of the applicants for the Program. This regulation seems to be an attempt to allow state and local governments to test different methods of regulating drones operating at low altitudes while encouraging input from the private sector.
There are two ways in which an entity can participate in the Program: as a Lead Applicant or as an Interested Party. A Lead Applicant must be a state, local or tribal government entity, and will serve as the main contact point with the FAA. Interested parties can be private sector companies or organizations, UAS operators, or state, local, or tribal governments. Interested Parties may include lead applicants. The application process has several deadlines, as outlined below:
- November 28, 2017, 2 pm EST – Deadline for Lead Applicants to submit notice of intent.
- December 13, 2017, 2 pm EST – Deadline for Lead Applicants to complete Vol. I and II; Deadline for Interested parties to request inclusion.
- January 4, 2018, 2 pm EST – Deadline for Lead Applicants to complete Vol. III, IV, V, and VI.
- May 7, 2018 – Deadline for Lead Applicants and FAA to enter into Memorandum of Agreement.
https://www.faa.gov/uas/programs_partnerships/uas_integration_pilot_program/splash/. Some of the selection criteria for Lead Applicants include:
- Overall economic, geographic, and climatic diversity of the selected jurisdictions
- Overall diversity of the proposed models government involvement
- Overall diversity of the UAS operations to be conducted
- The location of critical infrastructure
- The involvement of commercial entities in the proposal and their ability to advance objectives that may serve the public interest as a result of further integration of UAS into the NAS [National Airspace System]
- The involvement of affected communities in, and their support for, participating in the Program
- The commitment of the governments and UAS operators involved in the proposal to comply with requirements related to national defense, homeland security, and public safety and to address competition, privacy and civil liberties concerns
- The commitment of the governments and UAS operators involved in the proposal to achieve the following policy objectives:
a. promoting innovation and economic development;
b. enhancing transportation safety;
c. enhancing workplace safety;
d. improving emergency response and search and rescue functions; and
e. using radio spectrum efficiently and competitively.
United States Dept. of Transp., How to Apply to UAS Integration Pilot Program (last modified Dec. 4, 2017 2:27 PM EST), https://www.faa.gov/uas/programs_partnerships/uas_integration_pilot_program/apply/.
Several courts have recognized that the FAA has exclusive authority over airspace, but the memorandum issued by the President to the Secretary of Transportation appears to be an attempt to erode the FAA’s complete control in order to allow local regulation for operations under 400 feet. However, all local regulations would still be under FAA supervision. Once applicants have been selected and the Program is underway, further regulations governing drones will likely continue to develop. If you have questions about how current and future regulations affect you or your operations, contact your attorney.