Is There a Drone under Your Tree? Here’s the Current Status of Federal Regulation

Drones, or unmanned aircraft systems (UAS), have become increasingly useful to pretty much everyone. No longer just the stuff of modern warfare, UAS are increasingly used in real estate, agriculture, infrastructure inspection, and search and rescue, to name just a few of their current civilian applications. Consumers are also buying drones for photography or just as model aircraft toys. And then there are the parcel delivery services envisioned by the likes of Amazon and Google.

But there’s a lot of confusion about UAS policy and obligations for consumers. Here’s a guide to what the federal government has been up to recently and what it means for UAS deployment and consumer operations.

• Regulators are moving slowly. Specifically, UAS airspace integration is slowly progressing at the Federal Aviation Administration. Title 14 of the Code of Federal Regulations, Part 107 contains numerous requirements for small UAS operations and operators. For instance, under Part 107, UAS can only fly within visual line-of-sight of the operator, can only fly over people if they are involved in the flight operation or inside a building, and can only operate during daylight hours. These restrictions preclude any of the business models, such as parcel delivery, that many are most excited about. The Federal Aviation Administration will need to issue new regulations (or repeal existing restrictions) to enable these important functions.
• Congress is considering several bills designed to speed airspace integration and protect the public—some good, some bad. The House and Senate both have pending (“stalled” is probably more accurate) multiyear FAA reauthorization bills that address UAS airspace integration. Both aim to speed up regulatory processes for enabling beyond visual line-of-sight, risk-based permitting, Arctic operations, and to encourage the FAA to grant waivers for safe UAS operations prior to the completion of comprehensive regulations. These are all steps in the right direction. We also saw the introduction of the Drone Federalism Act in the Senate and the Drone Innovation Act in the House, which would likely lead to a destructive proliferation of a patchwork of state laws on UAS if enacted. For better or for worse, neither the good provisions nor the bad provisions have advanced in recent months.
• Hobbyist UAS registration is again required. Congress has restored a regulation requiring hobbyist drone registration that was vacated by a federal court earlier this year. Back in December 2015, the FAA issued an interim final rule requiring that all hobbyists register with the FAA prior to using their small UAS. CEI argued that this was an unlawful abuse of power because Congress had specifically prohibited Congress from promulgating any new regulations on model aircraft hobbyists and the process for bringing the rule into force violated the Administrative Procedure Act. Drone hobbyist and lawyer John Taylor took the agency to court and won earlier this year, invalidating the FAA’s illegal registration requirement for hobbyists. However, the FY 2018 National Defense Authorization Act, Section 1092(d), brought back the registration requirement.