Small UAVs Are No Threat to Civilians

Aerospace Manufacturing and Design: The FAA Modernization and Reform Act of 2012 (FMRA) targets Sept. 30, 2015, as the date for integration of unmanned aerial vehicles (UAVs) into the U.S. National Airspace System (NAS). Why do you believe the FAA should exempt certain small UAVs from the restrictive regulatory structure presently in place?

Anne Swanson and Jon Hill: There are UAVs and there are UAVs. Small UAVs can and should be immediately exempted from the requirements of the FARs [federal aviation regulations] if they are operated in Class G airspace and within line of sight of the pilot and observer. We have argued in the past for defining small UAVs as those that weigh 8 lb or less, and the more that we study this, we believe that number should be raised upwards. Like with model aircraft, which are flown today without regulation and without incident, allowing small UAVs to operate away from conflicting traffic associated with Class E, D, C, B, and A airspace carries little risk. Sense-and-avoid technology is not needed for these aircraft that operate at very low altitudes and are not mixed with controlled airspace traffic associated with airspace other than Class G.

AMD: What do you define as a small UAV?

AS and JH: The FMRA defines “small unmanned aircraft” as unmanned aircraft weighing less than 55 lb, and it is our understanding that the FAA is working on a definition that is associated with UAVs weighing 50 lb or 55 lb or less, and we believe it should accelerate action on this issue. We think such a definition of small UAVs is appropriate.

AMD: To what role should these exempt UAVs be limited?

AS and JH: The exemption should be available for small UAVs that operate in any commercial service that does not present privacy issues. Real-time surveillance could be one of the areas that is prohibited while state and local issues associated with reasonable expectations of privacy are resolved.

AMD: Does Dow Lohnes – or do you as individuals – represent any clients that would benefit from fewer restrictions on UAVs?

AS and JH: Yes, but the views expressed are our own.

AMD: According to a recent Christian Science Monitor online poll, 75% of respondents are only “somewhat aware” or “not at all aware” of non-military UAV uses. What is the UAV industry doing − or does it need to do − to educate the public more effectively?

AS and JH: It is easy to grab headlines by focusing on police functions and the use of real-time surveillance capabilities. At the same time, the Association for Unmanned Vehicle Systems Int’l has been doing a good job with its campaign to educate policymakers and the public on the innumerable benefits that will flow from widespread commercial use of UAVs. Its report, “The Economic Impact of Unmanned Aircraft Systems Integration in the United States,” which was released earlier this spring, should be must-reading for anyone interested in this area. Assuming commercial integration begins in 2015, the report shows that 70,240 jobs would be created in the first three years and 103,776 in the first 10. It chronicles projected state-by-state economic growth throughout the same period and totals those estimates to predict that integration will produce more than $13.6 billion in economic growth over the first three years and $82.1 billion over the first 10 years.

In particular, the industry needs to let the public know that UAVs have important roles to play in surveying functions in the agricultural, mining, and environmental fields as well as many other areas. These functions do not need real-time surveillance capabilities in order for the benefits to be realized. Data can be collected and downloaded upon landing and the results processed into survey format for use by operators, such as the landowners.

AMD: How would you increase the public’s awareness of potentially beneficial, non-military uses of UAVs?

AS and JH: Obviously, more resources need to be directed aggressively at the state and local levels, where the commercial benefits of UAVs seem to have been overlooked or misunderstood. Such advocacy should draw distinctions between commercial uses such as surveying and real-time surveillance conducted for law enforcement or military purposes.

AMD: The same poll indicates 54% of the public does favor increased non-military use of UAVs. In another survey of the general public conducted in March 2013, by the Institute for Homeland Security Solutions (IHSS) and RTI Int’l, 57% of respondents support the use of UAVs for any application; 61% support their use in commercial applications; and even higher percentages support their use for search and rescue, homeland security and crime-fighting. If this is the case, then what is the source of the disparity between current government policy and public attitude? Is it because the FAA has continued its restrictions for technical reasons?

AS and JH: It is our belief that the privacy controversy that has erupted has been fueled by press focus on an easy issue that may deserve some, but not exclusive public consideration. The immediately available benefits of UAVs seem to have been overlooked. Neither the press nor the government has seriously considered, in a public forum such as a Notice of Proposed Rulemaking, the commercial uses of UAVs, small or large, that can be integrated into the NAS with a simple exemption. We do not believe that technical issues are holding up regulation of very small UAVs.

AMD: The same poll indicates that the top two issues that need to be addressed are individual privacy (60%) and safety of people/property on the ground (57%). How is the UAV industry addressing this need?

AS and JH: We do not speak for the industry, so it is hard to answer this question, but drawing distinctions between a multi-ton Global Hawk that carries weapons and a small, UAV with no real-time surveillance capabilities would be a good start.

AMD: How is proposed federal legislation, such as the bills submitted by U.S. Reps. Ed Markey (D-Mass.) and Ted Poe (R-Texas), attempting to address the needs for privacy regarding UAV operations?

AS and JH: Since Markey was elected to the Senate earlier this summer, his House bill, the Drone Privacy and Transparency Act of 2013 (H.R. 1262), is no longer pending in the House. In his first tour of Massachusetts as a senator, Markey made statements that he plans to work with other senators, such as Sen. Rand Paul (R-Ky.), to address privacy issues related to UAVs; however, Sen. Markey has not yet introduced legislation in the Senate on the issue. On July 31, 2013, Markey’s bill, in virtually identical form was reintroduced in the House by Rep. Peter Welch (D-Vt.) as H.R. 2868.

The Poe and Welch bills take very different approaches to addressing the privacy issue. Poe’s bill (H.R. 637) amends the U.S. criminal code with respect to use of UAVs by both private and public entities. The standard with respect to private use is fairly vague, stating that it is unlawful to operate a private UAV “to capture, in a manner that is highly offensive to a reasonable person” any recording or record of “an individual engaging in a personal or familial activity under circumstances in which the individual had a reasonable expectation of privacy.” The provisions pertaining to public use of UAVs have as their goal “minimiz[ing], to the maximum extent practicable, the collection or disclosure of . . . covered information.” It defines “covered information” as information “that is reasonably likely to enable identification of an individual” or is “about an individual’s property that is not in plain view.”

The Poe bill restricts government entities from operating UAVs to collect or disclose information for a law enforcement purpose except (i) pursuant to a warrant or court order meeting certain standards; (ii) for U.S. border patrol operations; (iii) with an individual’s prior written consent; or (iv) in situations when an emergency or national security threat does not allow prior issuance of a warrant or court order.

The Welch bill amends the FMRA to do essentially five things: (i) requires the Transportation Secretary, working with other agencies, to study and report to Congress on the privacy issue; (ii) orders the FAA to integrate privacy considerations into its UAV rulemaking process; (iii) forbids the FAA from issuing UAV authorizations unless the applicant identifies the data that will be collected, its subsequent uses, and the applicant’s means for protecting privacy; (iv) requires, in the case of law enforcement applicants, that they explain how they will minimize collection and retention of data unrelated to a criminal investigation; and (v) orders the FAA to create a public website providing information on UAV authorizations, data security breaches by UAV operators, and times and locations of UAV flights.

AMD: A number of states have proposed pre-emptive state laws that would protect the privacy of citizens from domestic UAV use. These include Maine (LD 236, vetoed by Gov. Paul LePage July 8, 2013), Tennessee, Texas, and Illinois. How does this complicate efforts to ease restrictions on commercial UAVs? How can these concerns be addressed by manufacturers and operators in the industry?

AS and JH: As a general matter, federal law always preempts state law. If the federal government were to adopt UAV privacy legislation, states would be preempted from regulating UAVs in those areas in which the federal government had regulated. Without addressing all of the issues surrounding preemption, states and local communities can still be left with important functions, depending on the scope of federal regulation, where they can exercise jurisdiction.

Operational issues should clearly be left to federal regulation. If federal regulation establishes, for instance, that commercial operation of UAVs over any property is permissible with the permission of the property owner, then state and local authority over such operations would be preempted. We believe state and local jurisdiction should be limited to authorizing the use of UAVs for law enforcement purposes.

AMD: The American Civil Liberties Union (ACLU) objects to law-enforcement privacy invasion and violations of the 4th Amendment right that protects citizens against unwarranted search and seizure. What safeguards can/do UAV advocates propose that would adequately address these concerns?

AS and JH: As we understand the ACLU’s statements and positions, the organization has broad concerns with the parameters of privacy law in this country, concerns that extend beyond the operation of UAVs. As we have said, as a threshold matter, operation with the permission of a landowner would and should address these concerns.

AMD: Is licensing UAV operators an option? Who would be required to register?

AS and JH: This is an issue that should turn on the size of the UAVs and the location of their operation. Small UAVs operated in Class G airspace, on a line of sight basis, should not require an operator to hold a federal or state operating authorization. Larger UAVs may require greater regulation.

AMD: Currently, operation of UAVs in the U.S. is limited to public-use activity by police departments and public universities, where specific, written permission must be received from the FAA. How do you propose to expand the use of UAVs in a responsible manner? What applications should be allowed and which prohibited? For example, commercial operation over farmland approved by the owner or utility right-of-ways is okay, but what about flying paparazzi UAVs surveiling a private wedding from outside private property lines? What about law-enforcement UAVs operating over public gatherings, ranging from marathons to political protests?)

AS and JH: Size does matter and when one speaks of small UAVs, minimal regulation is needed if operation is in Class G airspace, with line of sight control, and with advance permission of the landowner for any flight.

AMD: Should federal statutes supersede state and local laws concerning operation of UAVs?

AS and JH: Yes, certainly with respect to operational aspects regarding the commercial use of UAVs.

AMD: Should federal law address the assignment of liability in the crash or loss of control of a UAV?

AS and JH: No, as is generally the case, with aircraft operation, liability should be based upon state and local law, except when special federal jurisdiction may exist such as in maritime settings.

AMD: If commercial UAVs are limited to operating only in Class G uncontrolled airspace (usually an altitude of 600ft MSL and not AGL), does that allow enough vertical airspace for safe operation?

AS and JH: Yes.

AMD: Beyond the FAA, are there any FCC limits being considered concerning the RF spectrum available for operation of UAVs? Are there any laws that prohibit interfering with UAV operations, such as radio jamming? Can you clarify the distinction between small UAV operation that is similar to R/C airplane model flying and operation of larger UAVs, such as military types, and where the dividing line exists?

AS and JH: The FCC is not considering any limits or restrictions on RF spectrum that may be utilized by UAVs. The FCC, in implementing the National Broadband Plan that it adopted in March 2010, has generally been looking at the efficient use of spectrum and, with respect to some spectrum unrelated to UAVs, is considering modification of either allocation or service standards. As part of its interest in making more spectrum available for broadband, the FCC is also looking at alternative ways to regulate receiver performance, such as through adoption of harm claim thresholds, but we do not expect this to have any direct effect on the rollout of UAVs.

As a separate matter, the FCC has always been concerned about parties that interfere with licensed or authorized uses, and throughout the years, has acted to forbid jamming of GPS. Recently, the FCC imposed fines totaling $31,875 against an individual for jamming GPS-band navigation at Newark Liberty Int’l Airport, an amount that included an upward adjustment of several of the component fines because of the FCC’s concern over interference to public safety operations.

AMD: What limits can or should be placed on autonomous operation of commercial UAVs, such as remote aerial monitoring of power transmission lines or other applications that may be possible in the future?

AS and JH: Many of the current small UAVs operate on the basis of pre-programmed flight paths with the pilot and observer only intervening when and if conflicting traffic is present or other operational issues arise. This process allows for careful preplanning and establishment of exact operational limits prior to flight, thereby assuring the surveying of only those areas for which advanced permission has been obtained.

AMD: Did anything new come from the NASA UAV meeting held July 18-19, 2013?

AS and JH: Nothing of which we are aware. We are pleased that NASA continues to take a public role in UAV issues.

AMD: Where are we now on the process of integration of UAVs into national airspace, where should we be, and where are we likely to be in September 2015?

AS and JH: Based upon the fact that deadlines set forth in the FMRA have already been missed, we would be surprised if meaningful integration of the UAV in the NAS for commercial operations is accomplished by that date.

Dow Lohnes
Washington, D.C.
www.dowlohnes.com

Anne Swanson is a partner at Dow Lohnes PLLC, where she uses her administrative law expertise to help communications, equipment, and navigation companies solve their regulatory problems. Her practice also focuses on new technologies, such as unmanned vehicles and “smart transportation” systems.

Jonathan Hill is a partner at Dow Lohnes PLLC, where he leads the firm’s aviation practice. He counsels clients on a variety of Federal Aviation Administration and Department of Transportation issues. He is also an active pilot with commercial, multi-engine, and instrument ratings.

Image courtesy of www.microdrones.com.

Eric Brothers, senior editor, can be reached at ebrothers@gie.net or 330.523.5341.