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Jennifer Trock

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On July 11, 2018, DOT’s General Counsel and FAA’s Chief Counsel sent a stern response to the Uniform Law Commission’s (ULC) draft model tort laws for drones, claiming that the ULC had created an “incorrect impression” that their agencies concurred with the model rules and requested the ULC strike any reference to ULC’s contacts with DOT and FAA counsel. Although the agencies deny that they have taken an official position on the relationship between Federal regulation and State and local authority over drones, the letter explains that the FAA’s State and local drone law guidance does not support ULC’s suggested per se exclusion zone up to 200 feet.  The FAA goes so far as to raise “decades of established precedent” would conflict with ULC’s proposed rule and that Federal courts have rejected the notion of applying traditional trespass law to aircraft overflights.

The letter highlights the increasing uncertainty of federal preemption over airspace laws as tensions between new federal, State, and local drone laws grow. Operators, on the other hand, want a settled legal landscape in which to operate.  The drone industry should closely follow the development of ULC’s model rules, which may be the precursor to future State and local rules and play an important role in defining the future relationship of federal, State, and local regulation of drones.

The new European Union (EU) General Data Protection Regulation (GDPR) came into effect on May 25, 2018.  This regulation, which is directly applicable across the EU Member States, applies to the collection, hosting, storage, use and other “processing” of personal data.  The GDPR applies directly not just to companies in the EU, but also those outside of the EU to the extent that they offer goods or services (irrespective of whether a payment is required) to…

As the second anniversary for FAA’s rules for the commercial operation of small UAS (sUAS)—Part 107—quickly approaches, this Insight Series will provide updates regarding on-going UAS rulemaking efforts since Part 107. Although Congress has required more FAA action and the industry has been clamoring for guidance to open the skies to UAS with new rules, the FAA has been limited in its rulemakings and many rulemakings have been significantly delayed.  However, the recently released Report on DOT Significant Rulemakings (March 2018) and the Agency Rule List (Fall 2017) suggest the FAA is making progress and new rules will be proposed in 2018.  Continue to follow our Insights for analyses of newly proposed and final UAS rules.

The Unmanned Aircraft Systems (“UAS”) Identification and Tracking Aviation Rulemaking Committee (“ARC”) released its recommendations to the Federal Aviation Administration (“FAA”).  Despite a lack of consensus on issues, the recommendations should help the FAA develop new rules for drone identification and tracking. Although the FAA was scheduled to publish an Advanced Notice of Proposed Rulemaking on identification (“ID”) and tracking requirements in May 2018, the proposed rules remain under review by the Department of Transportation and have missed a February 2018 deadline for the Office of Management and Budget to start its review.  It is unclear when the rulemaking will progress.

Launched in June 2017 to address concerns over “rogue” drones flying in the National Airspace System (“NAS”), the FAA tasked the ARC with providing recommendations regarding UAS remote identification and tracking technologies. Comprised of three Working Groups; Existing and Emerging Technologies, Law Enforcement and Security, and Implementation, its membership represented a broad range of aviation and UAS industry stakeholders.  The ARC met several times to educate the public, gather information, and to discuss and deliberate among members and finalized its report in September 2017. 

The FAA is rolling out the Low Altitude Authorization and Notification Capacity (“LAANC”), a tool which is allowing operators of small unmanned aircraft systems (“sUAS” or drone) operators  to get immediate approval for certain operations in controlled airspace.  The introduction of LAANC will benefit commercial operators by decreasing the planning time required for many drone operations and increase flexibility in decisions.  LAANC is currently supported at about 50 airports from Miami to Anchorage and is scheduled to expand next year.

Yesterday, the Department of Transportation (“DOT”) published details of the new Unmanned Aircraft System (“UAS” or “drone”) Integration Pilot Program (“Program”) in the Federal Register. The White Office of Science and Technology Policy launched this Program to  encourage State, local, and tribal governments to collaborate with private industry on innovative UAS operations.  The Program is the most significant change in UAS regulation by the Trump Administration and could lead to unprecedented opportunities for companies to test drone applications that were previously restricted.  

But time is of the essence—communities and companies must move quickly to avail themselves of the new UAS opportunities. We encourage any interested parties to begin developing a plan and submit a Notice of Intent with the Federal Aviation Administration (“FAA”) in the coming weeks. Details of the Program are explained below and are available in the Federal Register Notice.

The White House unveiled a highly anticipated Drone Integration Pilot Program (“Program”) that will allow state and local government to test different models for low-altitude regulation of drones, also known as unmanned aircraft systems (“UAS”).  The Program represents a significant break from the Federal Aviation Administration’s (“FAA”) previous position to discourage state and local government involvement in most aspects of UAS operations and is designed to encourage private entities to undertake innovative UAS testing in the United States, such as drone package delivery.  It will create more opportunities for cutting-edge commercial UAS flights for communities and operators, but the FAA and commercial aviation will likely continue to resist expanded operations that pose safety risks, including flights near airports.

Earlier this month, a small commercial airplane collided with an unmanned aircraft system (“UAS” or drone) during its final descent into Jean Lesage International Airport in Quebec City, Canada.  After numerous near-misses, this was the first confirmed collision between a drone and a commercial aircraft in North America.  The incident has renewed UAS safety and enforcement concerns, but also highlights opportunities and tools necessary to further improve the system. 

As the California wildfires grow with devastating impacts on human life, property, and business, the potential unmanned aircraft system (UAS or drone) benefits and risks for firefighting (re)emerge.  UAS stakeholders, including firefighters, are realizing the potential life-saving and fire response applications of UAS.  Meanwhile, the Federal Aviation Administration (FAA) and local emergency services remain on high alert for UAS that pose a risk to emergency responses.