© 2014 The Texas Lawbook.
By Richard L. Wynne, Jr. and Jennifer Henry – (August 22) – Over the past decade, unmanned aircraft system technology has moved from being reserved for sophisticated military systems on one end of the spectrum and toys for recreation and hobbyists on the other end to a mainstream position with far-reaching applications for American businesses.
Businesses ready to embrace the available technology are increasingly frustrated by the perception that the FAA is moving too slowly, and many are conducting commercial drone operations despite the FAA’s ban on those operations.
Amazon made headlines last December when its CEO reported that it was developing a system to use a fleet of drones to deliver packages within thirty minutes of ordering.
While many people viewed “Amazon Prime Air” as little more than a publicity move during the Christmas shopping season, there are legitimate commercial operations that would benefit greatly from the use of UAS technology.
Energy. In June of this year, BP became the first company to receive permission from the FAA to use drones over land for commercial purposes.
The authorization granted BP the right, with numerous restrictions, to operate a 9-foot-wingspan aircraft at Prudhoe Bay, Alaska, to survey roads, pipelines, and other equipment. In July, San Diego Gas & Electric (“SDG&E”) received FAA approval to test a very small UAS to determine the feasibility of using drones to inspect power lines and other utility equipment.
Agriculture. One of the most likely candidates for using UAS technology is the commercial farming industry. Commercial operators envision using drones to survey and simplify inspection of large fields to identify diseases or infestations, to monitor irrigation operations, and even to replace manned crop-dusters to precision-spray pesticides and fertilizers.
Drones are already used for these tasks in other countries, including Japan and Brazil.
Real Estate Development. In metropolitan areas, real-estate developers are using UAS technology to sell condominiums in buildings that have yet to be built.
Although commercial drone operations are prohibited by the FAA, these developers are using drones to fly above development sites to take high-resolution images of the views that will be seen from the yet-to-be-built condos and penthouses.
Residential real-estate agents, including some in Texas, are also using drones to take video around existing homes in suburban areas. In these applications, the drones can obtain images from perspectives that would not otherwise be achieved easily.
The FAA, however, has expressly stated that drone use by realtors is prohibited under current law.
Commercial Photography. Drones have the ability to take images and video at varying heights above the ground, which is desirable for many applications in commercial photography.
Indeed, while manned aircraft have long been used for aerial photography, the FAA restricts how low these aircraft may operate. Commercial photographers have recognized that UAS technology can fill the gap between ground-based and manned-aircraft systems.
In fact, the Motion Picture Association of America and seven video-production companies have joined in asking the FAA for authority to use drones, claiming that the technology is safer than using manned aircraft for aerial filming.
Delivery Service. In addition to Amazon’s widely discussed drone-delivery concept, other businesses have used UAS technology for delivery of various items.
In January of this year, the FAA shut down the drone operations of a Minnesota microbrewery that was testing the technology to deliver beer to ice fisherman on frozen lakes. And the Las Vegas Cosmopolitan Hotel recently demonstrated bottle delivery by drone at one of its outdoor bars, also without FAA approval.
Despite the skepticism following Amazon’s announcement last year, the company has formally petitioned the FAA for permission to conduct limited UAS-delivery feasibility testing over its own property in Seattle.
Other Industries. UAS technology may also be used where it is impossible, impractical, or even dangerous to use manned systems. For example, the FAA has approved specific UAS operations by governmental agencies to assist in the monitoring and containment of wildfires.
One Texas company unsuccessfully sued the FAA to allow continued drone use in search-and-rescue operations after receiving a cease-and-desist letter from the agency. Drones were used to measure radiation levels in and around the Fukushima nuclear power plant following the disaster at the plant in 2011.
Recognizing the need for UAS regulation, Congress passed the FAA Modernization and Reform Act of 2012, (P.L. 112-95), which requires the FAA to implement a plan to “provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.”
With this deadline looming, the FAA has established six test sites across the country to ensure that unmanned systems can safely coexist with manned aircraft in the national airspace.
One of these test sites is operated by Texas A&M University–Corpus Christi, which is conducting research in areas of security systems, path planning and obstacle avoidance, improved autonomy and human factors, reconfigurable antennas, command and control link issues, and airworthiness.
This integration isn’t coming quickly enough for businesses eager to use drones.
These businesses are faced with a choice — wait for the FAA to implement the regulations for commercial operations or go ahead and use available technology notwithstanding the FAA’s proscription of commercial operations. Many have chosen the latter, and the FAA is scrambling to shut down these operations.
Compounding the FAA’s problem is that federal law mandates that drones less than 55 pounds are perfectly legal as long as they are used strictly for recreational or hobby purposes and are operated within a certain flight envelope. Whether a UAS operation is prohibited in many cases turns on the purpose of the flight.
In 2011, the FAA fined a commercial photographer, Raphael Pirker, $10,000 for flying a small UAS above the University of Virginia campus to film a promotional video. The FAA deemed the flight to be in violation of the FAA’s proscription of commercial UAS operations and also claimed that Pirker was operating his aircraft in an unsafe manner.
Pirker challenged the FAA’s authority, and in March of this year, an administrative law judge with the National Transportation Safety Board agreed with him, ruling that the drone he used was properly characterized as a “model aircraft” rather than an “aircraft” subject to existing regulations.
The FAA has appealed and has issued further notices reasserting its policy that no person may conduct commercial UAS operations in the national airspace without specific authority.
Still, some businesses remain undeterred and are openly defying the FAA’s authority.
For many companies, the risk of FAA enforcement is minimal compared to the benefit of using UAS technology. But the FAA has an obligation to integrate unmanned aircraft into the national airspace safely.
Indeed, the public and lawmakers would have little tolerance if the FAA were to allow unrestricted UAS operations and one collided with a manned aircraft or crashed in a metropolitan area resulting in death or injury.
Either of these scenarios are within the realm of possibilities, as even small unmanned aircraft system may have wingspans of 10 feet and weigh over 50 pounds.
Even sophisticated drones do not have impressive safety records. The U.S. military has conducted regular UAS operations since the Vietnam War.
Just since 2001, however, more than 400 U.S. military drones have crashed, and there has been at least one mid-air collision with a manned aircraft. These events highlight the risks inherent in UAS operations. Despite advanced systems for these aircraft, things can go wrong, including remote-pilot error, equipment failure, loss of communication links, and unexpected environmental conditions such as high winds.
The FAA’s testing program, including that being conducted at Texas A&M, must address every aspect of UAV operations, from airworthiness testing, command and control, communication-link security, collision avoidance, and pilot training and certification.
This will take time, and in all likelihood, will not be completed for the FAA to meet the September 2015 deadline for integrating unmanned aircraft into the national airspace.
According to the FAA, until it has finalized the regulations, absent an exemption from the FAA, all commercial UAS operations must be done on Special Airworthiness Certificate—Experimental Category.
FAA Notice N JO 7210.873 § 7.a.(2). To obtain an exemption from the FAA restrictions, the operator must provide the FAA detailed information about the particular UAS to be used, the purposes for its use, and specific details about the test area to be used.
In particular, because it considers this type of certificate to involve testing operations, the FAA will likely deny any application for operations that are not to be conducted over open water or sparsely populated areas. See 14 C.F.R. § 91.305. For some businesses, the red tape and difficult application process only encourage unauthorized use.
To date, the FAA has issued very few exemptions permitting commercial UAS use, and those have all involved limited testing operations in narrowly defined locations and circumstances.
The FAA is unlikely to reverse its cautious approach to UAS-airspace integration, so until the FAA implements regulations for the certification and authorization of unmanned systems, most commercial drone operations will continue to be in violation of FAA policy.
Nevertheless, the UAS industry and its trade organizations like the Association for Unmanned Vehicle Systems International are striving to make widespread commercial operations a reality.
Rich Wynne and Jenny Henry are partners at Thompson & Knight. Wynne is a former aeronautical engineer and specializes in intellectual property and aviation law. Henry’s practice focuses on aviation and commercial litigation.
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