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Will New Technology, Legislation Help Drones and Airplanes Share the Sky?

March 23, 2016
Drone Law Blog Post

On March 18, 2016, a Lufthansa Airbus A380 experienced a near miss with an unmanned aerial system (UAS or drone) while approaching LAX, 14 miles east of the airport at an elevation of 5,000 feet. The drone flew 200 feet over the airliner, according to the FAA. This is the latest in many such incidents, including the widely-covered interference with California aerial firefighting tankers last year, causing grounding effort for a time. According to the L.A. Times, there have been 200 reported cases of close encounters involving drones and aircraft in California alone since 2014 and nearly 650 nation-wide.

Although difficult to prove, almost all of these incidents are attributable to recreational users. The hobby has exploded with relatively inexpensive equipment and relaxed regulation; primarily, on-line registration, operating line-of-sight, keeping below 400 feet, observing local laws, and operating not within five miles of an airport. Hobby use is personal, non-commercial use. Any aerial vehicle used in business, is required to obtain a "Section 333" exemption from the FAA and operate the UAS by a certified pilot. A thousand or so exemptions have been issued, but dozens are being approved daily. Commercial drones have not escaped incidents, but none appear to have been aircraft related.

There's an App for That

FAA has been busy trying to educate the public about operating drones safely. FAA has recently released an app for Apple and Android devices, B4UFLY. The app lets users know about specific restrictions through the device's GPS, such as a warning that you are within five miles of an airport requiring permission, within prohibited airspace, such as Washington, D.C., or in other areas, like national parks, that may have special rules in place.

Local Regulation

Frustrated with the slow evolution of drone laws in the U.S. and the reaction to fears about invasion of privacy, trespass, personal injury and even terrorism, no fewer than 45 states have considered legislation related to drones.

In Michigan, House Bill 5181 (introduced 12/17/15) would enable Wayne County Airport Authority police to exercise their police powers outside the geographical boundaries of the airport to pursue persons causing interference in the airspace above the airport. This is reportedly directed at drone use as well as laser pointing from off-airport property.

FAA Reauthorization

The U.S. Senate passed a continuing resolution on March 17, 2016 to keep FAA funded through July, while the House and Senate wrangle with different long-term spending bills. The Senate's bill contains some interesting UAS security and commercial use implications, as well as a provision potentially preempting state and local regulation of drones. The bill requires FAA to test and develop technologies to enable the tracking, interception and disabling of UASs around airports, military installations and other sensitive areas. The bill encourages FAA to adopt a risk-based approach to permitting, taking into account the location, the nature of the mission, known failure circumstances and both the technology’s and the operator’s safety record. But it doesn't advance the eventual use of drones as a commercial delivery system (ala Amazon and others).

The federal government has traditionally imposed upon local governments the obligation of enforcing laws affecting the hazards in the local airspace. The Senate bill proposes to preempt these local obligations as they relate to the operation of drones:

No State or political subdivision of a State may enact or enforce any law, regulation, or other provision having the force and effect of law relating to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.

The Senate bill is only a proposal. The House has a different bill that will have to be reconciled. We wait and see.

What does this have to do with Uber?

On its surface, nothing. But like all new, innovative technologies, unmanned aerial systems are evolving faster than the legal framework within which they are force fit. As Congress and the FAA play catch up, drones continue to test regulatory limits. One thing is for certain, the technology isn't going away. Stay tuned for updates.

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