On Feb. 15, 2015, the Federal Aviation Administration released a set of long-awaited proposed rules for commercial drone operation that paves the way for commercial drone usage in the United States by 2017. At the same time, the White House released a memorandum setting forth policies for safeguarding privacy, civil rights and civil liberties in domestic drone use by federal agencies. These landmark developments in drone regulation signal the Obama administration’s increasing recognition of the importance of commercial drone use.

The FAA’s Proposed Drone Regulation

The FAA’s proposed rules apply to the operation of small unmanned aircraft systems (UAS) (i.e., drones) weighing 55 pounds or less for non-hobby or non-recreational purposes. The proposed rules introduce a regulatory framework that would integrate UAS operation into the national airspace system (NAS), allowing uses such as crop monitoring and inspection, research and development, educational and academic uses, rescue operations, aerial photography, and inspection of power lines, pipelines and antennas. The proposed rules do not affect recreational drone use, which is already permitted as long as users obey certain safety requirements.

The most significant of the proposed rules is that, during operations, an unmanned aircraft must stay within visual line of sight of either a person who is operating the aircraft (the operator) or a “visual observer” who is assisting the operator by maintaining constant visual contact with the aircraft. Though the operator must always have the “capability” for visual line of sight of the aircraft, the proposed rule would not require the operator to “exercise this capability” if he or she is augmented by at least one visual observer. Multiple visual observers can be used, but since the operator must always be “capable” of seeing the aircraft, the proposed rule would prohibit a relay or “daisy-chain” of multiple visual observers. The operator and visual observer(s) do not have to be within vocal range as long as they are able to communicate by radio or other communication devices.

Other significant proposed rules are:

• The operator must be able to see the aircraft with vision unaided by any device (other than corrective lenses); binoculars, onboard cameras and other vision-enhancing devices cannot be used to satisfy the visual line-of-sight requirement (since these devices do not have sufficient peripheral vision);

• Maximum airspeed of 100 miles per hour and maximum altitude of 500 feet above ground level;

• The aircraft may not be operated over any person not involved in its operation;

• The aircraft may only be operated during daylight hours (official sunrise to official sunset, local time);

• No person may operate more than one unmanned aircraft at one time;

• Aircraft may not be operated from a moving vehicle or aircraft (but can be operated from watercraft); and

• The operator must maintain the aircraft in safe operating condition and must inspect it for safety prior to flight.

Furthermore, the FAA proposed rules that would require that operators of small UASs be certified for commercial operation (though no certification is required for visual observers). Under the proposed rules, the operator must:

• Be at least 17 years old;

• Pass the FAA’s initial aeronautical knowledge test and a recurrent test every 24 months;

• Be vetted by the Transportation Security Administration;

• Make the aircraft and associated documents available to the FAA for inspection, upon request; and

• Report accidents that result in injury or property damage to the FAA within 10 days.

The proposed FAA rules are now open for a 60-day period of public commentary, which the FAA will take into account in formulating its final regulations.

Currently, approximately 20 states have enacted laws addressing drone usage, and a number of others are considering drone legislation. Most of these laws dictate requirements and restrictions for drone use by state and local agencies, but some do apply to commercial drone use. Naturally, some of these laws may be preempted if the proposed FAA rules should take effect, but at this early stage, it is difficult to assess the extent of any such preemption.

White House Memorandum Regarding Drone Use by the Federal Government

In parallel to the FAA’s proposed rules, the White House issued a memorandum setting forth guiding principles governing domestic drone usage by U.S. federal agencies aimed at safeguarding privacy, civil rights and civil liberties, while leaving the U.S. Department of Commerce to implement the specifics of such safeguards. The memorandum emphasized that, as with any information collected by the federal government, information that federal agencies collect using drones is subject to the Privacy Act of 1974 (5 U.S.C. §552a) and other laws that restrict the collection, retention and dissemination of personal information. In particular:

(a) Agencies are required to:

• Collect information using UAS and use such information only to the extent “consistent with and relevant to an authorized purpose”;

• Retain UAS-collected information no longer than 180 days (with certain exceptions); and

• Not disseminate UAS-collected information outside of the agency (with certain exceptions).

(b) Agencies must ensure that their collection, use, retention and dissemination of UAS-collected information would not violate the First Amendment or discriminate against persons based on ethnicity, race, gender, national origin, religion, sexual orientation, or gender identity, and that proper procedures are in place to address civil liberties complaints.

(c) Agencies must ensure that all drone-related activities are conducted in a manner consistent with the U.S. Constitution.

(d) Agencies must implement certain accountability measures for effective oversight of agency UAS use.

(e) Agencies must provide reasonable transparency regarding their use of UASs, to include public notice regarding authorized use of drones, changes in drone programs that may affect privacy, civil rights or civil liberties, and annual drone use.

The memorandum has comparable legal force to an executive order. 

Conclusion

The FAA will likely be flooded with thousands of comments from interested stakeholders in the coming months. Although the FAA projects being able to implement drone rules by 2017, the rules are still not final. Accordingly, organizations using drones for commercial purposes must still obtain permission from the FAA through a certificate of authorization or other mechanism.

Though the FAA’s proposed rules would finally lift what is now a near-ban on commercial drone operations, many are critical that the rules would limit some of the most potentially innovative applications of drone technology. Visual line-of-sight requirements, temporal operating limitations, and geographic, population-based restrictions will likely be of significant focus of the thousands of comments that the FAA is likely to receive from interested stakeholders. Accordingly, the proposed rules and comments should be carefully monitored by organizations interested in commercial drone usage as the FAA works towards final rules expected in 2017. Finally, though the White House memorandum relates only to privacy considerations for drone use by the federal government, commercial drone users should follow the development of these rules as states consider legislation to restrict commercial drone uses that would infringe on privacy rights and expectations.