Drones - A New Legal Frontier

Posted by Drew Larson in 2015 on 12/3/2015

Drones - A New Legal Frontier (Download a PDF of this article)

Technological advances are constantly creating new markets that were inconceivable just years before. One example is the use of small unmanned aircraft systems or drones. Improvements in technology have made drones affordable for businesses and consumers, enabling many new uses. Examples include Amazon’s proposed Prime Air service, State Farm’s use of drones to assess roof damage, architect’s use for site planning, and farmers’ use of drones for field and crop analysis.

However, with new markets comes confusion regarding the applicability of existing laws and rules. For the last few years, the FAA and private industry have been debating the applicability of current FAA rules to the commercial use of drones, with the scope of the FAA’s authority being hotly contested. The FAA has also been tasked with drafting new rules for drones that are appropriate for this new market.

On February 15, 2015, the FAA issued proposed rules regarding the Operation and Certification of Small Unmanned Aircraft Systems (the “Proposed Rules”). The Proposed Rules provide a variety of requirements for commercial operators of drones, including:

No flying drones over other people.

The operator must keep the drone within visual line of sight.

Only flying drones during daylight.

Max speed of 100 mph and max altitude of 500 feet.

Operators must complete a knowledge test prepared by the FAA every 24 months.

Operators must obtain an unmanned aircraft operator certificate with a small UAS rating.

Preflight inspections to ensure the drone is safe for operation.

It is important to emphasize that these rules are not final, and many comments are being submitted by various parties. Until the Proposed Rules are adopted, the FAA’s position is that it must pre-approve the commercial use of drones on a case-by-case basis. However, there is some case authority indicating that certain uses of commercial drones are outside of the FAA’s current authority. There may also be local or state rules governing the use of drones within a particular jurisdiction.

In addition, on October 19, 2015, the FAA proposed requiring the registration of drones with the FAA, whether for commercial or recreational use. A task force is being appointed to consider appropriate rules, with a goal of releasing the new rules before the holiday season.

Legal clarity in this area will continue to be an aspiration instead of a reality for the foreseeable future. If you are interested in using a drone in your business, make sure that you are familiar with the risks before acting. Your BrownWinick attorney is here to help answer any of your questions.

Drew Larson is a member at BrownWinick and practices primarily in the areas of corporate formation and transactions, intellectual property, estate planning and tax. Drew can be reached at (515) 242-2485 or larson@brownwinick.com.