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U.S. Regulation

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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.

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 D.C. Circuit Court of Appeals recently determined that the FAA’s registration rule for recreational unmanned aircraft systems (“UAS” or “drones”) was beyond its legal authority.  While this ruling is a setback for the FAA in its ability to track and oversee the hundreds of thousands of recreational drones operating in the U.S., we view the obstruction as temporary and likely to be fixed legislatively. In December 2015, the FAA began requiring the registration of all UAS in the country, including those used for recreational, commercial, or public use. Registration is performed online, costs $5, and requires UAS owners to provide their names, addresses, and email addresses. After registration, the owner is required to label the UAS with the FAA drone registration number. Since the regulation went into effect, almost a million drones have been registered on the FAA website. John Taylor, a recreational drone operator, challenged the registration rule alleging…