Regulating Unmanned Aerial Systems

By Danny Restivo

In early October, Verizon Communications flew a 17-foot remote control plane over Cape May, New Jersey as part of an emergency response exercise that assessed an Unmanned Aerial Systems (UAS) ability to provide network data over dead areas. The trial came on the heels of Verizon’s announcement of their intentions to offer data packages through UAS, subsequently allowing drones to capture or stream video in mid-flight. Verizon’s proposal, as well as its exercise, signals yet another high-profile company’s venture into a rapidly growing market. In September, Verizon-rival AT&T unveiled plans to use drones for inspecting cellphone towers and testing the performance of wireless networks. AT&T has also begun offering data plans for UAS as well.

The move by these telecommunication giants comes two years after Amazon CEO Jeff Bezos unveiled future plans to deliver packages with unmanned aircraft during a 60 Minutes interview in 2013. While Amazon, as well as Google, lobbied to make regulations delivery friendly, the FAA released commercial drone guidelines in June mandating that any person “operating the [UAS] must be capable of seeing the aircraft with vision unaided by any device other than corrective lenses.” The regulation also stipulates that drones can only be used for delivery in a narrow set of circumstances.

As a result of the FAA regulation, Amazon moved this component of research and development operations to Britain. The shipping giant is now working with United Kingdom officials to create policies conducive for commercial drone use.Amazon continues to call for less stringent UAS regulations in the United States, while market leaders in other sectors have aimed to capitalize on the technology without suffering a similar fate.

According to a White House Fact Sheet, the commercial drone industry is projected to generate $82 billion and support nearly 100,000 jobs over the next decade. A 2016 report from PricewaterHouseCoopers (PWC) estimated the commercial market for UAS applications could grow to $127 billion by 2020, of which $45 billion includes supporting infrastructure needs.In light of these expectations, Verizon hopes their UAS data plans can support work in energy, infrastructure, construction and other industries.

New York Energy Provider Con Edison has already begun testing how well drones inspect 10-story high boilers in East Manhattan. Instead of building scaffolding, UAS uses video, photography and thermal technology to inspect large boilers that help produce energy for New York’s most iconic buildings. Moreover, large utility companies like Duke Energy, Exelon, National Grid, Southern Company, Pacific Gas & Electric and Xcel Energy have all begun testing UAS technology for energy service support needs. However, under the FAA regulations, companies using UAS must have certified commercial drone pilots, while also obeying the line of sight rule. This stipulation has hampered its implementation for some organizations, especially those wanting to inspect hundreds of miles of power lines without devoting a large number of personnel. As a result, some companies have sought out waivers from the FAA.

According to the PWC report, agriculture is another sector that’s expected to generate a lot of money for UAS, nearly $32.5 billion worth. With a growing population and the demand for maximum crop yields increasing, farmers have become a target market for UAS. Among the benefits, farmers can capture crop density, assess water and disease management, and collect invaluable data for the next year’s harvest. In February 2016, John Deere announced a partnership with a Minneapolis-based software firm that specializes in agricultural technology, including UAS. However, like many utility and energy companies trying to benefit from the technology, John Deere may have to get a waiver from the FAA regarding visibility issues before they can offer UAS to customers.

With a large commercial drone market emerging, many states and municipalities have begun to ask how an increase in UAS usage might impact safety and security. In 2015, “pilot reports of interaction with suspected unmanned aircraft increased from 238 in 2014 to 780.” The FAA law does provide a framework, but it does not stipulate how municipalities or states should regulate drones for police surveillance, trespassing, voyeurism, hunting and other uses.State and local legislators are now balancing constituent concerns over UAS with potential economic benefits.

As of October, 17 legislatures have enacted 31 pieces of legislation related to drones, while 38 other states have considered legislation in 2016. Many of the regulations enacted center on the need to protect critical infrastructure. In Tennessee it’s illegal for drones to go within 250 feet of a facility’s perimeter, while Oklahoma, Texas and Oregon have enacted “de facto” no fly zones over critical facilities.

Furthermore, municipalities have begun to enact ordinances regulating UAS. In Cleveland, the city council passed legislation prohibiting drones from within five miles of any regional airport, as well as other policies permitting local law enforcement to enforce FAA regulation. Meanwhile, greater Cleveland municipalities have passed laws that bar UAS near schools, city buildings and other critical infrastructure.

In February, Los Angeles filed criminal charges against two men for flying a drone in the vicinity of a police helicopter. The misdemeanor charges came two months after the city approved an ordinance that made it illegal to fly a drone more than 500 feet in the air, and within five miles of an airport without permission. Both Cleveland and Los Angeles ordinances comply with FAA mandate, but some states have passed legislation keeping UAS regulation within the statehouse. Virginia, Maryland, Vermont and Rhode Island have approved legislation that prohibits local governments from passing their own drone laws.

“The enactment of drone policies from state and municipal legislatures, like those in Cleveland, Tennessee and other locations, illustrates how a UAS regulatory framework may unfold elsewhere and how it will surely spark further regulatory debate” says Brett Goldman, DMGS Manager of Special Projects. “Once again” adds Goldman, “we find ourselves with an incredibly exciting, disruptive, and overall helpful technology that elected officials and regulators will one way or another learn to understand. Hopefully, that understanding comes with frictionless industry participation and results a smooth evolution of the technology into the hands of the consumer.”

Here are is a list of states with enacted unmanned aircraft regulation:

copy-of-map-of-the-united-states

Enacted UAS Legislation By States in 2015 and 2016
(National Conference of State Legislatures)
Arizona (1449) Prohibits certain UAS operations from interfering with first responders. The law prohibits operating near, or using UAS to take images of a critical infrastructure facility.

Arkansas (Act 293) Prohibits the use of drones to commit voyeurism. (Act 1019) Prohibits UAS from recording information about critical infrastructure without consent.

California (AB 856) Prohibits a UAV from entering an aircraft’s airspace in order to capture an image or recording of an individual, his family or friends. This legislation is a response to the use the use of UAS by the paparazzi. The state has also enacted laws that offer first responders immunity if they damage a drone while attending to an emergency, while making it a misdemeanor to interfere in an emergency response situation with a drone.

Delaware (HB 195) Makes it a crime to use UAS at an event with more than 1500 attendees. It also makes it illegal to fly a drone over critical infrastructure and an incident where first responders are engaged. The law also specifies that only the state may enact UAS laws or regulation.

Florida (SB 766) Stipulates that drones can’t capture images of private property, the owner, tenant or occupant without consent if a “reasonable level” of privacy exists.

Hawaii (SB 661) Establishes a UAS test site and advisory board, as well as a Chief Operating Officer for the Hawaii UAS test site.

Idaho (SB 1213) Prohibits drones while hunting, or locating wild game.

Indiana (HB103) Allows UAS to capture photos and video of a crash. (HB 1246) Prohibits UAS from locating game during hunting season.

Kansas (SB 319) Expands harassment laws to include drones.

Louisiana (Act No. 166) Regulates UAS in commercial agricultural operations. The state has passed a variety of laws and regulations that prohibit drones from interfering with police response, schools, trespassing, surveillance and voyeurism.
 
Maine (LD 25) Requires law enforcement to receive approval before acquiring UAS, as well as a warrant before using UAS. Also specifies that law enforcement comply with all FAA requirements.

Maryland (CH 0164) Specifies that only the state can regulate UAS, preempting county and municipal authorities from creating their own ordinances.

Michigan (Act 12) Prohibits drones from harassing or interfering with hunters (Act 13) Prohibits using UAS to hunt game.

Mississippi (SB 2022) stipulates that using a drone for “peeping tom” activities is a felony.

Nevada (AB 239) Includes UAS in the definition of aircraft and regulates the operators of UAS. It also prohibits the weaponization of UAS and prohibits the use of drones within a certain distance of critical facilities and airports without permission. The bill specifies certain restrictions on the use of UAS by law enforcement and public agencies and requires the creation of a registry of all UAS operated by public agencies in the state.

New Hampshire (SB 222) Prohibits the use of UAS for hunting, fishing or trapping.

North Dakota (HB 1328) Stipulates limitations for using drones for surveillance.

Oklahoma (HB 2599) Prohibits the operation of UAS within 400 feet of a critical infrastructure facility.

Oregon The state has enacted a variety of regulations related to drones, including laws against their weaponization. Oregon has also regulated law enforcements use of UAS.

Rhode Island (HB 7511) Gives exclusive regulatory authority over UAS to the Rhode Island and the Rhode Island Airport Corporation.

Tennessee (HB 153) Prohibits capturing images over certain open-air events and fireworks displays. It also prohibits the use of UAS over prisons and other correction facilities.

Texas (HB 3628) Permits the creation of rules governing the use of UAS in the Capitol Complex and provides that a violation of those rules is a misdemeanor. (HB 2167) Permits individuals in certain profession to capture images using UAS, as long as no individual is identifiable. (HB 1481) Makes it a misdemeanor to operate UAS over critical infrastructure facility not more than 400 feet off the ground.

Utah (HB 296) Allows a law enforcement agency to use UAS to collect data at a testing site and to locate a lost or missing person in an area where a person has no reasonable expectation of privacy. It also institutes testing requirements for a law enforcement agency’s use of an unmanned aircraft system. (HB 126/3003) Makes interfering in a wildfire operation with drone a criminal act.

Vermont (SB 155) Permits and regulates the use of drones by law enforcement. The law also makes weapons on drones illegal.

Virginia (HB 2125) Requires a law enforcement agency to secure a warrant before using a UAS for any purpose, except in limited circumstances. (HB 412)Prohibits localities from enacting drone ordinances.

Wisconsin (SB 338) Prohibits using a drone to interfere with hunting, fishing or trapping. (AB 670) Prohibits drones from operating over correctional facilities.

West Virginia (HB 2515) Prohibits hunting with UAS.

For more information, contact Eric Martins (emartins@dmgs.com)

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