“Drones are coming. Lots of them. They are fun and useful. But their ability to pry, spy, crash, and drop things poses real risks. Free-for-all drone use threatens air traffic, people and things on the ground, and even national security.” 1
Several industries are using unmanned aircraft systems, popularly known as drones, to support their business activities. Construction managers and surveyors use drones and specialized software to map construction sites,2 railroad and pipeline routes, and to monitor construction activities. Agricultural interests use drones to monitor crops for disease and adequate irrigation and also to apply insecticides and fertilizers. Realtors regularly use drones to enhance marketing of properties. Insurance adjusters and inspectors use them to investigate damage and to ascertain continued compliance with safety standards. They have become a regular tool of television stations supplementing ground-based and helicopter coverage of news stories. As the Federal Aviation Administration (FAA) gradually develops regulatory criteria for beyond-line-of-sight use, drones are taking on bigger roles in the inspection of pipelines, electric transmission lines, and railroads. Law enforcement agencies regularly use them for surveillance, hot pursuit, search and rescue, and monitoring riots and demonstrations.3 E-commerce vendors continue to work on package delivery drone systems. For lawyers, drones not only facilitate certain law-practice activities, but they also involve operators who need legal counseling and representation.
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The typical civilian drone is a quadcopter powered by rechargeable lithium-ion batteries, weighing about three pounds, costing from $600 to $12,000 depending mostly on camera quality and flexibility. A quadcopter has four rotors and flies more or less like a helicopter, able to hover, take off and land vertically, and maneuver sideways and backwards as well as forward. The Chinese firm DJI controls 70 percent of the market for small quadcopters with its Mini, Air, Mavic, and Inspire models.4 None of these vehicles of this class has endurance greater than 35 or 40 minutes, a characteristic that constrains their utility for some applications. Their top speeds rarely exceed 30 or 40 knots and their ceilings (maximum altitude) are around 1,000 feet above ground level. A few more expensive models, costing tens of thousands of dollars, are marketed for specialized functions requiring greater endurance and range. They typically are fixed wing configurations.
All of the commercially useful models carry high-quality cameras, as good as or better than the latest iPhone camera, and sophisticated control and navigation electronics that permit them to hover in place, orbit around a target selected by the operator, and return on command to a spot defined by longitude and latitude coordinates recorded when they take off.
They are flown by an operator standing on the ground using a small console with a video screen and joysticks. Higher end models also can follow an object selected by tapping on the operator screen and perform other maneuvers likely to produce captivating video. Full-motion video of HD quality and still images can be streamed in flight and/or saved on a memory chip. They typically use unlicensed frequency bands such as Wi-Fi for both the control link and for video feed. They know where they are over the ground by integrating inputs from GPS and photographic sensors.
Drone Law
Regulations promulgated by the FAA govern drone operation. They are contained primarily in Part 107 of the Federal Aviation Regulations,5 supplemented by Part 48 relating to registration of aircraft.6
Part 107 covers small drones—those weighing more than 0.55 pounds and less than 55 pounds. These “UAS,” as the FAA calls them, must be registered,7 and may be flown only by persons having remote pilot certificates.8 Remote pilot certificates are issued to persons who pass an online test of relevant aeronautical, regulatory, and meteorological knowledge. The test is roughly equivalent to a private pilot test, though considerably easier.
Drones may be flown only within the line of sight of the operator or a separate observer communicating with the operator9 and can be flown at night only if they have anti-collision lighting systems.10 They may not be flown over people unless they meet certain design requirements11 and may not be flown higher than 400 feet above ground level.12 Special limitations apply to operations near airports.13 Recreational, as opposed to commercial, drone operations by drones weighing less than 0.55 pounds are subject to a more lenient set of registration and pilot-licensing rules.14
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The FAA is still developing its regulations for operations beyond line of visual sight (BVLOS). Such operations are believed to be safe only if conducted within a comprehensive radio-controlled airspace management system: an “Unmanned Aircraft System Traffic Management (UTM) system.” UAS operators would be responsible for managing their operations safely within UTM constraints. Communication and coordination would occur through a “distributed network of highly automated systems via application programming interfaces (API), and not between pilots and air traffic controllers via voice.”15 The FAA’s Aviation Rulemaking Committee released its final report on BVLOS operations by drones on May 10, 2022.16 The agency published a Request for Comments in the Federal Register on May 25, 2023.17 The Federal Communications Commission (FCC) has proposed to open the 5030-5091 MHz band for communications associated with drone airspace management.18
To facilitate migration of drones into the National Airspace System, the FAA requires that all drones that operate after September 2023 be equipped with specialized transponders similar to, but different from, the ADS-B transponders already required on most manned aircraft.19 The drone transponders must broadcast drone identification and position information at one-second intervals. These signals are expected to be received and processed by a collection of private sector airspace management entities certified by the FAA.20
Airworthiness certification is required for drones weighing more than 55 pounds, automated fleet operations, drone flight beyond the range of visual line of sight, or sustained flight over people. Airworthiness certification is an elaborate process requiring testing and FAA approval of design and performance details,21 although the agency is offering streamlined airworthiness approval for some complete drone systems.22
State and local regulation is preempted except when it relates to traditional tort categories or unique local conditions.23 Nevertheless, attempts by municipalities are common. States are preempted from regulating aviation activities in the national airspace because the United States Congress has occupied the regulation of national airspace field. Uncertainty persists, however, on the lower limits of federal airspace.24
The FAA has issued guidance on preemption.25 Preempted state laws include regulations: (i) restricting flight altitudes or flight paths in order to protect the safety of individuals and property on the ground or aircraft passengers; (ii) designating “highways” or “routes” for UAS; (iii) regulating the selling or leasing UAS-related air rights above roadways; (iv) establishing a licensing scheme for UAS pilots; and (v) mandating safety-related equipment such as geo-fencing.
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