Chris Leuchten


In mid-January, U.S. Secretary of Transportation Elaine Chao and the U.S. Federal Aviation  Administration (“FAA”) released a long-awaited proposed rule permitting unmanned aircraft system (“UAS” or “drone”) operations at night and over people. Once the rule is finalized, it will allow commercial operators to fly UAS operations previously restricted under the current Part 107 rules (14 C.F.R. §107) without an individualized waiver from the FAA (14 C.F.R. §107.200).

These rules show that the FAA is advancing from a one-size-fits-all regulatory structure to a more nuanced regime based on risk and safety analyses. For the most part, the rule is not based solely on weight. Instead, it incorporates performance-based requirements to achieve the agency’s safety objectives. Basing UAS restrictions on performance and risk is more consistent with European rules and other countries with advanced UAS regulations.

While the proposed rule represents a step in the right direction, the rule is not likely to be finalized for many months or longer, because the FAA indicated the rule would not be finalized until after the FAA addresses the contentious issue of remote identification of UAS. In the proposed rule—which is expected to be published in the Federal Register next week—the FAA states that it “plans to finalize its policy concerning remote identification of small UAS—by way of rulemaking, standards development, or other activities that other federal agencies may propose—prior to finalizing the proposed changes in this rule.”

The new European Union (EU) General Data Protection Regulation (GDPR) came into effect on May 25, 2018.  This regulation, which is directly applicable across the EU Member States, applies to the collection, hosting, storage, use and other “processing” of personal data.  The GDPR applies directly not just to companies in the EU, but also those outside of the EU to the extent that they offer goods or services (irrespective of whether a payment is required) to individuals in the EU or engage in monitoring the behavior of individuals located in the EU. The penalties for violating the GDPR are quite high, going up to 4% of the total worldwide annual turnover for the enterprise in the prior year or €20 million, whichever is greater.  Operators, users, and manufacturers of unmanned aircraft systems (also known as “UAS” or “drones”) should be aware of the new EU requirements if they have operations or…

The FAA is rolling out the Low Altitude Authorization and Notification Capacity (“LAANC”), a tool which is allowing operators of small unmanned aircraft systems (“sUAS” or drone) operators  to get immediate approval for certain operations in controlled airspace.  The introduction of LAANC will benefit commercial operators by decreasing the planning time required for many drone operations and increase flexibility in decisions.  LAANC is currently supported at about 50 airports from Miami to Anchorage and is scheduled to expand next year.

As Congress considers provisions for potential inclusion in a long-term FAA Reauthorization Bill, one piece of legislation in Congress attempts to vastly redefine the relative roles of the federal and state governments.  The Drone Federalism Act of 2017 is a bipartisan bill that would give additional authority to state and local governments to regulate UAS operations below 200 feet and potentially lessen the FAA’s control over certain drone operations.

A short term extension of the Federal Aviation Administration (“FAA”) is probable as Congressional leaders seem unlikely to iron out a compromise on FAA reauthorization bills before the end of September. Committees in each chamber approved separate long-term reauthorization legislation last month, including numerous significant changes to the current unmanned aircraft systems (“UAS”) regulatory regime.  However, these drone provisions may be delayed by the lack of agreement on other manned aviation issues, such as air traffic control privatization and pilot training requirements.  Without a broad consensus on the bill language and with Congress in August recess, Congress is unlikely to pass a substantive reauthorization before the FAA’s current authorization ends on September 30.

Should the legislation advance, these bills address some key issues regarding the future of UAS, such as privacy protections, carriage of property, unmanned aircraft traffic management (“UTM”), risk-based permitting, UAS defense, recreational drone registration, and public aircraft operations (“PAO”).  These topics are analyzed in more detail below.

Following a near-collision between an F-22 stealth fighter and a civilian drone (also known as an unmanned aircraft system or “UAS”), last week a four-star U.S. Air Force (“USAF”) general requested additional authority to combat civilian drone operations threatening USAF facilities and assets. This request highlights the difficulty faced by institutions and businesses wanting to protect critical infrastructure and property while not violating federal law. General Mike Holmes of the Air Combat Command told the Air Force Association about two incidents—in the same day—where unauthorized civilian drones entered airspace over USAF facilities and interfered with operations. In one incident, a drone nearly collided with an F-22 Raptor stealth tactical fighter jet, one of the USAF’s most advanced aircraft, costing in excess of $150 million. According to General Holmes, the USAF needs new legal authorities to down such drones or another means to protect from unlawful incursion. He says the USAF’s…

Last month marked the first meeting of the FAA’s Unmanned Aircraft Systems (“UAS” or drones) Identification and Tracking Aviation Rulemaking Committee (“ARC”). The ARC brought together key stakeholders to discuss regulatory issues relating to UAS ID and tracking, air traffic management for drones, and local enforcement concerns. Drone identification and tracking systems could help the FAA and the UAS industry pave the way for more flexible rules, including UAS operations over people and beyond visual line-of-sight. 

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…