Tag: drones

Amazon to Control Delivery by Drone?

People are talking about and news organizations are covering Amazon’s announced plans to deliver goods by drone in the not-too-distant future.  However, fewer are talking about or covering Amazon’s effort to be the only company that can autonomously deliver goods by drone.  On March 25, 2014, Amazon filed a United States patent application directed to aspects of a drone delivery system.  Pursuant to current patent law, the application was published on October 1, 2015, roughly 18 months after the application was filed.  While the application is still pending and not yet an issued patent, it provides an interesting look at the scope of protection Amazon is seeking for its drone delivery system.

Under current proposed FAA regulations, drones cannot be flown outside of the line of sight of the operator.  A much greater range will be needed for an effective drone delivery network.  Amazon is proposing to send its drones as far as 15 miles from a regional fulfillment center.  The drones would take off vertically from a warehouse floor, fly at low altitude over a suburban landscape and then descend into the backyards of their destination points.  There they would lay the package on the lawn before lifting off to return to the warehouse for another run.  The success of such a system will depend upon receiving FAA approval.  FAA approval of such a system is likely to be contingent upon demonstrating that the system can be operated without causing a hazard.  In other words, the drones will need to be equipped  with “sense and avoid” technology that prevents them from crashing into things.

Amazon’s pending patent application, Pub. No. US 2015/0277440 A1, contains claims that are broadly directed to a propeller driven automated mobile vehicle having a laser based rangefinder configured to determine a distance to an object, to a distance determining system for an automated mobile vehicle having a distance determining element positioned to emit a laser signal that reflects off a reflective exterior surface of a motor, and to an automated mobile vehicle having a plurality of motors where the alignment axis of at least two of the motors are not parallel and each motor has a distance determining element.  These claims have not yet been examined by the Patent Office.  Upon examination, the scope of the claims will likely have to be narrowed to distinguish them from prior art.  However, it seems clear that Amazon is interested in pursuing broad protection for “drones” having a distance determining element, which is likely to be a necessary component of any “sense and avoid” technology.  Thus, the potential exists that Amazon will obtain patent protection broadly covering drone delivery systems.

The way the Amazon patent application is written, it seeks to avoid the need for human involvement to ensure that vehicles do not collide with other drones, manned aircraft, or other objects or structures on the ground.  It also discusses a system for automatically sensing and avoiding objects.  Thus, the “automated mobile vehicles” of the application and recited in the claims appear to be directed to autonomous drones.  However, at this stage it is not yet clear whether the claims in any patent that issues will be limited to autonomous drones, but might also cover remotely-piloted drones.  It remains to be seen whether the examination process will push Amazon into limiting the claims to autonomous operation.

The Amazon patent application also discusses the distance determining elements being used to detect the presence of objects and to then cause the automated mobile vehicle to alter its path to avoid the object.  Thus, the distance determining elements seem to be used not only for unloading positioning, but also for sense and avoid in flight.  While in a remotely piloted context, a sense and avoid system may not need to actually determine distances to other objects.  The remote pilot could rely on visual displays of the surrounding environment of the drone to avoid collisions.  However, in an autonomous operation, it is difficult to envision any sense and avoid system that would not need to know at least the distance from the drone to surrounding objects to function.  Amazon appears to be using this need to know such distances in the autonomous context to preempt the field.  In other words, a patent covering any autonomous drone that determines distance to surrounding objects might preclude any other drones from being able to have a functioning sense and avoid capability.

The broadest claims in the Amazon patent application just recite a “distance determining element.”  In a narrower claim, the application specifies “the distance determining element is at least one of an ultrasonic ranging module, a laser rangefinder, a radar distance measurement module, stadiametric based rangefinder, a parallax based rangefinder, a coincidence based rangefinder, a Lidar based rangefinder, Sonar based rangefinder, or a time-of-flight based rangefinder.”  Thus, at this stage, Amazon is trying to cover all of the named techniques, any combination of those techniques, as well as anything else that could broadly be considered a distance determining element.

As noted, the Amazon patent application is still just pending and has yet to be examined.  Amazon may have other patent applications pending that have not yet been published, and therefore are not yet open to review by the public.  FAA regulations are also still developing.  Thus, much remains to be determined even as it relates to Amazon itself.  Other entities may also be working on drone delivery systems and/or have pending patent applications that have not yet been published.  Domino’s Pizza is said to have tested delivering pizzas by drone.  Skype’s co-founders have set up Starship Technologies to develop a ground-based drone that would be able to deliver groceries to customer’s homes.  It will be very interesting to see how the intellectual property protection for drone delivery systems plays out.

Article By Thomas J. Daly of Lewis Roca Rothgerber LLP

©2015 All Rights Reserved. Lewis Roca Rothgerber LLP

Drones: Insurance Coverage Issues

With new regulations for unmanned aerial vehicles (UAVs, or drones) and a seemingly never-ending expansion of use cases and attendant sources of liability, drone operators and those concerned about damage caused by drones need to carefully consider the role of insurance. As in other contexts, insurance—if carefully tailored and negotiated—can be an effective risk-transfer tool.

Insurance that potentially covers loss related to drones is in flux, but generally falls into three categories:

1. Specialty Aircraft Insurance: While specialty products related aircraft, including for unmanned aircrafts, have been on the market for a number of years, use of those products historically has been limited to individuals, companies and enterprises whose core business relates to aircrafts. This type of insurance is not always tailored to drones with cameras, which raise additional potential liability (e.g., invasion of privacy).

2. Commercial General Liability (CGL) Insurance: Most other insureds rely on a commercial general liability (CGL) policy to provide protection. But earlier this year, the Insurance Services Office (ISO), which proposes and makes changes to the standard CGL form used by most insurers, revised the provisions that might apply to drone-related liability. Some of these revisions purport to exclude coverage for liability related to drones that, for example, might arise from subcontractors’ or independent contractors’ operations for which the insured might be vicariously liable. Other changes to the CGL policy form require detailed attention to specific drones and projects or to whether violations of privacy might occur. The ISO changes warrant careful consideration, both when considering the purchase of insurance, as well as during contract negotiations where risk transfer is a significant issue.

3. Homeowners’ Insurance: Finally, for non-commercial insureds hoping to rely on their homeowners’ insurance policies, many insurers are seeking to include exclusions for drone-related liability in their new policies. Spend the time to learn whether or not your policy provides adequate coverage.

Purchasing insurance for drone-related liability is only the first step. Claims related to damage caused by drones are on the rise and will only continue to rise in the future. When faced with insurance claims, expect insurers to examine closely whether the insured complied with all applicable regulations, industry standards with respect to training, policies or procedures outlined in the application for insurance, and others.

In short, insurance can be an effective risk-transfer tool for commercial drone operators or those concerned about drone-related liability. The recent changes in policy terms and a rapidly-changing marketplace for insurance require diligence and specialized knowledge of how the offered insurance policy fits the insured’s potential liability.

Article By Eric G. Barber & Steven L. Ritt of Michael Best & Friedrich LLP

© MICHAEL BEST & FRIEDRICH LLP

That Drone in Your Holiday Stocking Must Now Be Registered With FAA

Fearing for public safety over the explosion of hobby-type drones taking to the air, on December 14, 2015, the Federal Aviation Administration (FAA) issued the first rule1 of its kind directed squarely to owners and operators of hobby and recreational small unmanned aircraft systems (sUAS aka drones) that now requires their registration on the FAA’s new online drone registration portal.2 A second, more comprehensive drone rule is expected to issue in 2016 to allow the use of drones for certain commercial purposes where the risk to public safety is low.

In the meantime, the hobby drone rule, which goes into effect on December 21, 2015 ahead of the holiday rush, requires all hobby-type drones weighing between 0.55 pounds (about two sticks of butter) and 55 pounds that have flown prior to December 21, 2015 to be registered no later than February 19, 2016.3 For hobby drones in this weight class flying for the first time on or after December 21, 2015 (i.e. holiday stocking stuffers), the rule requires that the owner register the drone before the first flight.

The FAA structured the grace period to encourage registration of millions of pre-existing drones while also requiring that all new drones be registered before first flight. To further encourage registration, the $5.00 registration fee will be credited back to registrants if they register within the first 30 days. And to lessen the burden of registration, the rule provides that a single registration applies to as many drones as an owner/operator owns or operates. If these incentives are insufficient to prompt compliance, the rule provides civil penalties up to $27,500, and criminal penalties including fines up to $250,000 and/or imprisonment for up to three years.

U.S. citizens age 13 or older can register their drones at the FAA’s registration portal. The registrant will need to provide the FAA with their name, physical address, mailing address (if different) and email address. Upon completion of the registration process, the FAA will provide the registrant (or certificate holder, as the FAA calls them) with a unique registration number that must be affixed to each drone.4 In addition, each registration must be renewed every 3 years and will require an additional $5.00 renewal fee.

After the rule goes into effect on December 21, 2015, all operators of hobby drones falling within the weight limits of the rule must provide proof of registration in the form of a Certificate of Aircraft Registration, either in printed or electronic form—much the same way as an angler or a hunter currently provides proof of a state fishing license or a state hunting license to a game warden.5

A number of exceptions to the rule are worth mentioning. First, hobby drones that weigh less than 0.55 pounds (i.e. radio-controlled micro quadcopters that fit in the palm of your hand) do not require registration.6 The rule will not apply to drones flown solely indoors. The rule also does not apply to those who want to fly drones for commercial purposes (i.e. for pay and/or hire) or on behalf of a state or federal government agency (i.e. fire departments, police departments, etc.). Such operators must first obtain an exemption of the FAA’s rules applicable to, for example, passenger-carrying aircraft, that the FAA has interpreted as also being applicable to commercial operators of unmanned drones regardless of size and weight. In addition, any types of entities other than individual hobbyists—such as corporations, or anyone wanting to record a lease or security interest—cannot use the online registration portal.

The new rule is the first concrete step that the FAA has taken in response to Congress’ mandate to the FAA under Section 333 of the FAA Modernization and Reform Act of 2012 to integrate unmanned aircraft into the National Airspace System (NAS). The next big step will be the FAA’s issuance in 2016 of rules that provide a legal path for using drones for commercial purposes without having to obtain prior FAA approval. Those rules will likely have a sweeping impact on business owners of all types who want to buy and sell aerial imaging and/or aerial data transmission services, including large-scale land developers, shopping mall operators and owners of other large structures, real estate agents, wedding photographers, and live TV/radio broadcast providers, to name a few, as well as industries that support those businesses, including software and hardware component suppliers, venture capital and financing providers, accountants, and the like.

In the interim, the new rule will force a dramatic change in the way consumers think about small radio-controlled unmanned aircraft in the future—they’re not just toys anymore.

Article By Thomas E. Williams of Neal, Gerber & Eisenberg LLP
© 2015 Neal, Gerber & Eisenberg LLP.

1 See FAA Interim Final Rule (IFR) available at: https://www.faa.gov/news/updates/media/20151213_IFR.pdf
2 The FAA’s drone registration portal is available at: https://www.faa.gov/uas/registration/
3 Model radio-controlled aircraft of all types, including the type of fixed wing, radio-controlled model aircraft that have flown in parks and fields for decades, fall under the new rule.
4 The unique registration number may be affixed via permanent marker, label, engraving or other means as long as the number is readily accessible and readable upon close visual inspection.
5 Although it is unlikely that the FAA will have the manpower to enforce the new rule against hobbyists who do not register their drones, the FAA nevertheless intends to employ a strategic approach to encourage compliance ranging from outreach and education programs to administrative and/or legal action should the facts of a case so warrant.
6 According to the FAA, most toy drones costing $100 or less will likely weigh less than 0.55 pounds (250 grams).

As Drones Hit the Sky Lawsuits Predicted to Fly

The rise of Unmanned Aerial Vehicles (“UAV”), also known as drones, is well-documented.  In fact, the global market for non-military drones has recently been estimated as a $2.5 billion industry that is growing at approximately 15 to 20 percent annually.  See Clay Dillow, Get Ready for ‘Drone Nation,’ Fortune, Oct. 27, 2014.  Companies large and small are heavily investing in drone technology and generating business capabilities based on their potential.

While some of the most highly publicized forays into drone usage include Fortune 500 shipping companies – such as Amazon investigating the potential use of drones for their delivery service – less publicized industries are ripe for drone operation.  These industries include agriculture, construction, energy, and mining.  Id.  All of which are industries in which it is easy to imagine the benefits of aerial data.

In fact, the Association for Unmanned Vehicle Systems International predicts that eventually 80 percent of the commercial drone market will relate to agriculture.  See Christopher Doering, Growing Use of Drones Poised to Transform Agriculture, USA Today, Mar. 23, 2014.  This is because a drone’s ability to assist farmers in identifying and analyzing insect problems, watering issues, crop yield, missing cattle, and fertilizing make for a natural union with the industry.

While some farmers may purchase and operate their own drones, it is expected that specialized companies will fill this demand.  One such company is goFarm LLC (“goFarm”)[1], a Michigan-based agri-data business – one of the few companies authorized by the Federal Aviation Administration to legally operate commercial drones in this arena.  GoFarm performs field surveys by drones operating at low altitudes that collect imagery in visible and non-visible bands to determine health of crops.  By analyzing hundreds or thousands of images, goFarm performs detailed assessments of the condition of entire fields and individual plants.

Whether such data is collected by end-user farmers or by specialized third-party companies such as goFarm, all individuals and companies involved need to be cognizant that with great opportunity also comes risk.

Beyond, the obvious risks of property damage that could result from wayward drones, many jurisdictions have, or are in the process of, passing legislation aimed at addressing privacy concerns.  The most recent example of such legislation comes out of Florida.  On May 14, 2015, Florida Governor Rick Scott signed a drone privacy bill into law.  This bill establishes a private right of action for people photographed in their homes by drones without their consent.  Some speculate that this legislation will trigger a wave of litigation.  See Carolina Bolado, New Fla. Drone Privacy Law Could Trigger Litigation Wave, Law360, May 15, 2015.

Legislation similar to that passed in Florida creates substantial risk to drone based companies, even those operating in rural locations typically associated with industries such as agriculture and mining. GoFarm’s Chief Technology Officer, Eric Silberg, explains that “when conducting their assessments, in order to ensure adequate coverage, inevitably pictures are taken of the areas directly surrounding the field goFarm operators are contracted to assess.  These pictures may include property that does not belong to goFarm’s customer, even if the drone never flies over land not belonging to the customer.  This extraneous data is removed during the analysis process, and is not available in any product.”  While companies utilizing drones for photographic purposes will need to alter their operations to comply with any local rules and regulations, inadvertent photographs could result in litigation exposure.

In order to protect themselves from privacy related claims, as well as other liability exposures, companies utilizing drones need to assess their insurance portfolios to ensure adequate coverage.  In particular, companies need to analyze the breadth of their liability policies, including the language of any potentially applicable exclusion contained therein – such as exclusions associated with aviation risk.  This analysis should be conducted with the help of an experienced insurance broker and/or insurance coverage counsel.

In the event that the company’s liability policies are deemed not broad enough to cover its contemplated operations, the company should investigate purchasing UAV coverage.  Given the relative infancy of the drone market, insurance companies are developing and releasing new products associated with drone activity at a breakneck speed.  Consequently, coverages and pricing will likely vary across carriers.  Risk managers should speak with their insurance experts to ensure that an appropriate and cost-effective insurance solution is identified and implemented.

[1] http://www.gofarminc.com.

ARTICLE BY

Jason S. Rubinstein of Gilbert LLP
© 2015 Gilbert LLP

Senators Booker and Hoeven Introduce the Commercial UAS Modernization Act to Streamline Drone Integration

Today, Senator Cory Booker (D-NJ) and John Hoeven (R-ND) introduced the Commercial UAS Modernization Act, legislation designed to streamline the integration of commercial unmanned aircraft systems (UAS) in the United States. The legislation would establish an interim rule governing small UAS operations, provide the Federal Aviation Administration (FAA) with some flexibility on issues like visual-line-of-sight (VLOS), reduce the regulatory burden for commercial operators, create a new deputy administrator position at the FAA focused on UAS and encourage maximum use of current FAA UAS test sites.

The FAA has already taken several steps in 2015 to expedite commercial use of UAS, including releasing the Notice of Proposed Rulemaking focused on the Operation and Certification of small UAS (UAS NPRM), approving blanket Certificate of Waiver Authorizations (COAs) and altering the Section 333 exemption process to reduce the burden on operators. While the Section 333 exemption process has resulted in nearly 300 approvals for UAS operations to date, the FAA’s proposed regulatory program may not be finalized until 2016 or even 2017.   The Commercial UAS Modernization Act would put a regulatory program in place before that time period, allowing the U.S. to take advantage sooner of what is expected to be $82 billion in expected economic impact over the next decade.

Commercial UAS Modernization Act

In general, the Commercial UAS Modernization Act:

  • Creates an interim rule for commercial use and testing of small UAS while the FAA finalizes rules covering commercial UAS.

  • Builds a framework for the registration and use of UAS for commercial purposes.

  • Strengthens the FAA’s oversight authority by creating a new position, the Deputy Associate Administrator for Unmanned Aircraft and by streamlining regulations.

  • Ensures that FAA test sites are being used to the maximum extent to facilitate research into new technologies, in partnership with industry and other relevant government entities.

The primary goal of the Commercial UAS Modernization Act is to create a regulatory gap filler until the FAA’s UAS NPRM is finalized. The legislation would allow small UAS operations without an airworthiness certificate. Many of the conditions set forth in the legislation are the same as what is found in the FAA’s UAS NPRM, including registration, certification and operator testing requirements. As for operations, the VLOS standard is still in place as well as the flight ceiling of 500 feet. Small UAS operators would also be required to obtain liability insurance covering operations and provide proof of that insurance to the FAA.

Interestingly, Section 338(e) of the legislation includes a requirement that the FAA “expedite and expand exemptions from the interim operating restrictions.” This appears to be the flexibility that many stakeholders had hoped for with the UAS NPRM. Under Section 338(e), the FAA may consider exemptions relating to (1) beyond VLOS operations; (2) programmatic exemptions based on previous analysis; (3) extension of VLOS and marginal visual flight rules weather conditions; (4) heavier unmanned vehicles.

The Commercial UAS Modernization Act would also create a new position, the Deputy Associate Administrator for Unmanned Aircraft. The new Deputy Administrator would be tasked with addressing some of the more challenging issues facing commercial UAS operations, including (1) aircraft spectrum issues; (2) barriers to beyond VLOS operations; (3) barriers to payload carriage; and (4) barriers to utilizing automated unmanned aircraft systems. The legislation also makes research a priority, including identifying safety standards for detect and avoid, command and control, autonomous aircraft systems, and air traffic management for beyond VLOS operations.

What has the FAA Done in 2015 to Expedite Integration

Small UAS Proposal

Earlier this year, the FAA released its Notice of Proposed Rulemaking focused on the Operation and Certification of small UAS within the United States. The UAS NPRM applies to small UAS defined UAS weighing less than 55 pounds. The UAS NPRM proposes to add a new Part 107 to Title 14, which would prescribe “rules governing the registration, airman certification, and operation of civil small UAS within the United States.” The public comment period for the NPRM ended on April 24, 2015. Now, the FAA will consider input from stakeholders while developing a final rule. That final rule may not arrive until 2016-2017. In the interim, commercial operators are left with the Section 333 exemption process.

Summary Grant Process

Speaking of the Section 333 exemption process, as of May 2015, the FAA has approved nearly 300 petitions for exemption. The pace of the FAA’s Section 333 approvals has increased as the agency tweaks the process. Recently, the FAA introduced a “summary grant” process. With the summary grant process, the FAA looks to see if a new Section 333 petition request is similar to a previously approved petition request. If the new request is similar to an already approved Section 333 petition, the FAA will rely on its prior analysis and issue a summary grant. The FAA has indicated that most of the Section 333 petitions that it has received are either for film and television production or for the collection of aerial data and that future similar petitions will be handled via the summary grant process. The FAA will still perform a detailed analysis for unique Section 333 petitions. Unique Section 333 petitions will also be subject to public comment.

The FAA has modified other pieces of the Section 333 approval process to reduce the barriers to approval. For example, in most Section 333 approvals to date, the FAA required operators to at least have a private pilot certificate. The FAA recently modified this requirement and now may approve operations by people who hold a recreational or sport pilot certificate.   Recreational and sport pilot certificates are generally easier to obtain than a private pilot certificate. Also, the FAA previously required UAS operators to have a third class medical certificate. The FAA eliminated that requirement as well. Now, an operator will only need a valid driver’s license to satisfy the medical requirement.

“Blanket” COA

Finally, one other streamlining tool the FAA adopted in the first part of 2015 is the concept of a “blanket COA”. In the past, once the FAA granted a Section 333 Exemption, the exemption holder would also have to file for a separate COA to fly the UAS in a particular block of airspace. The COA approval process can take 60-days.   To cut down on that time, the FAA announced in March that companies with current Section 333 approvals and all future such approvals would be covered by a “blanket” COA as long as operations were at or below 200 feet.

The “blanket” COA applies to any UAS operator that has been granted a Section 333 exemption for aircraft that weigh less than 55 pounds, that operate below 200 feet, during daytime Visual Flight Rules (VFR) conditions, within VLOS of the pilots, and that stay certain distances away from airports or heliports. UAS operations outside of these parameters still require the standard COA.

ARTICLE BY Michael Weller of Bracewell & Giuliani LLP
© 2015 Bracewell & Giuliani LLP

FAA Issues New Proposed Rules for Unmanned Aerial Systems (Drones)

Greenberg Traurig Law firm

The FAA Modernization and Reform Act of 2012 addressed the integration of civil unmanned aircraft systems, also known as UAS or drones, into the national airspace system. The Act requires the Secretary of Transportation to develop, among other things, a comprehensive integration plan and rules governing the operation of small UAS. On Feb. 15, 2015, the Federal Aviation Administration (FAA) issued its proposed rules. According to the Secretary of Transportation, UAS “technology is advancing at an unprecedented pace and this milestone allows federal regulations and the use of our national airspace to evolve to safely accommodate innovation.”

The Notice of Proposed Rulemaking will be available for public comment for 60 days following its publication in the Federal Register. Interested and affected companies have the opportunity to provide comments on the FAA proposal and shape the final UAS rule.

Permitted Vehicles

The proposed rules would permit the operation of UAS weighing less than 55 pounds. The UAS would not be required to have an airworthiness certificate, such as that required for an airplane, but they would have to display aircraft markings similar to other aircraft, and operators would be required to conduct a pre-flight safety check. The FAA is also soliciting public comment on further exemptions for “micro” UAS, weighing 4.4 pounds or less. The proposed rules do not apply to model aircraft and do not apply to private, recreational use of drones.

Operational Limits

The UAS could operate at speeds up to 100 mph, and at altitudes below 500 feet above ground level. Operations would be limited to daylight hours with visibility of at least 3 miles. The UAS would have to remain within the unaided visual line-of-sight of the operator; binoculars or an onboard camera would not satisfy this requirement. Operators could also use an observer to assist in maintaining visual contact, but would have to retain the ability to see the UAS themselves.

Licensed Operators

Operators would have to be licensed by the FAA, but they would not need a pilot’s license. Under existing regulations, operators can request an exemption from FAA regulations, but such exemptions are usually conditioned on possession of a pilot’s license by the operator. Under the proposed rules, operators would have to be at least 17 years old and be vetted by the Transportation Security Administration. They would be required to pass an initial aeronautical test at an FAA test site, with an update test every 2 years. The anticipated costs for the license are small, in the range of a few hundred dollars.

Flights over People and Property

The UAS would be prohibited from operating over any persons “not directly participating in the operation” or “not located under a covered structure that can provide reasonable protection.” This is a significant limitation, which would preclude flights over most public locations such as schools, beaches and parks, and might be read to limit flights over residential areas. Given the number of drone videos already posted online, this rule is likely to be broken, which, as noted below, may result in potential liability. The limitation on overflight of other persons also highlights privacy concerns. Although not directly addressed in the proposed rules, privacy issues will continue to be a point of friction between drone operators and those potentially affected, such as drone-operating photo-journalists and their news subjects.

Delivery Systems and Remote Monitoring

The line-of-sight requirement would likely preclude the type of remotely-piloted delivery systems envisioned by certain major sales and fulfillment services. This requirement may also limit the use of the proposed rules for authorizing remote monitoring of agricultural sites, pipelines and other areas that are out of the line-of-sight of the operator. However, in these situations, the FAA grants limited exemptions to existing FAA regulations for qualified operators, and the proposed rules do not preclude further development of rules for remote operation.

Liability and Insurance

A UAS weighing 50 pounds and traveling at 100 mph could represent a significant potential danger to persons and property. The proposed rules would require a report within 10 days of any accident involving injury to persons or property. Companies operating drones are cautioned that existing liability policies may not provide coverage for drones, particularly for those that are not operated in compliance with existing FAA regulations and exemptions. Some carriers are writing coverage specific to drones, and operators, as well as the companies that hire such operators, should consult with their insurance agents prior to commencing operations.

Ongoing Legal Issues and Interim Operations

The FAA rules are proposed rules, not authorizations for immediate operations. Therefore, companies that plan to use drones before the rules are finalized are cautioned that, unless they hold an existing FAA exemption, they may risk liability for the commercial use of drones. In addition to the FAA, state and local governments are currently exploring further restrictions on drone flights, including restrictions related to privacy, which are not directly addressed in the FAA proposed rules.

In addition to regulatory limitations, drone operations can create significant risks of liability for personal injury, property damage and other claims. These legal issues are likely to present risks even for companies that do not directly operate drones, but instead contract with drone operators.

Given the rapid development in both the technology and the rules and regulations, companies that plan to operate or hire drones should consult with counsel to get an up-to-date assessment of the regulatory environment and other legal risks pertaining to their particular location.

ARTICLE BY

Alais L. M. Griffin
Jordan D. Grotzinger
Adam Siegler
OF
Greenberg Traurig, LLP

Three Things Commercial Drone Operators Need to Know Regarding the FAA’s Proposed Rules

Neal, Gerber & Eisenberg LLP

In a long anticipated move, on February 15, 2015, the Federal Aviation Administration (FAA) issued proposed rules that are intended to permit the commercial operation of small unmanned aircraft, commonly referred to as “drones.”

Safety is Key

The proposed rules attempt to balance the risk to public safety while providing a regulatory framework that is reasonably (but not overly) burdensome to the industry to avoid stifling advances in technology and economic competitiveness.  The FAA addresses safety in a number of ways, but most obviously by limiting the weight of the drone, limiting the manner of its operation, and by placing restrictions on the people flying the drone. By providing a regulatory path for at least some commercial operations, the proposed rules help those in the industry avoid uncertainty and substantial costs associated with requesting an FAA exemption or special airworthiness certificate.

Only Small Drones Would Have the Green Light 

Under the proposed rules, commercial operators of a small drone (weighing less than 55 pounds) must not fly higher than 500 feet above ground level, faster than 100 mph, over people who are not directly involved in the operation, at night, or when weather visibility is less than 3 miles.  A small drone must undergo a preflight inspection before use, though FAA airworthiness certification would not be required. With some modifications due to its size, small drones nevertheless would be subject to the same aircraft marking and registration requirements that are applicable to manned aircraft.  And although the drone must remain within the visual line-of-sight of the operator at all times, to meet the needs of commercial operators where limited risk to people or property would be incurred, this requirement may be met by also deploying a visual observer, perhaps in radio contact with the operator, to assist the operator to maintain visual contact with the small drone in place of the operator.

Operators (“Pilots”) of Drones Must Meet Minimum Requirements

To establish at least a reasonable degree of uniformity across all potential commercial uses permitted under the rules and to minimize national security risks within the borders of the U.S., commercial operators of small drones must:

Be at least 17 years old;

Pass an initial and recurrent aeronautical knowledge test at an FAA-approved knowledge test center;

Be vetted by the Transportation Security Administration (TSA);

Obtain an unmanned aircraft operator certificate with a small unmanned aircraft systems (UAS) type rating,

Make available to the FAA the small unmanned aircraft for inspection/testing; and

Report an accident within 10 days of any operation that results in injury or property damage.

To be sure, winners and losers will exist on both sides of the proposed rules.  While crop monitoring, research uses, educational/academic uses, powerline/antenna/bridge inspections, aerial photography, wildlife tracking, and rescue operations may be more easily accommodated under the proposed rules, other commercial uses will remain in the cold, such as anything requiring use of a drone heavier than 55 pounds at takeoff, flights higher than 500 feet, faster than 100 mph, or at distances or under conditions where the operator or visual observer cannot maintain visual line-of-sight with the drone.  Until the FAA obtains data sufficient to warrant expansion of these rules, those who wish to operate a drone outside the proposed rules have the option of pursuing either an FAA exemption or a special airworthiness certificate.

ARTICLE BY

Thomas E. Williams
OF
Neal, Gerber & Eisenberg LLP

Drones Over Kenya and South Africa?

Covington BUrling Law Firm

Similar to the growing U.S. interest in exploring civilian uses of unmanned aircraft systems (“UAS”), efforts are underway across the African continent to deploy UAS in innovative ways such as protecting wildlife, expanding internet connectivity to isolated communities, and delivering humanitarian aid.  In Kenya, Dickens Olewe and his African SkyCAM project is helping journalists to revolutionize their news reporting and coverage.

The winner of the inaugural African News Innovation Challenge, African SkyCAM “establishes Africa’s first newsroom-based ‘eye in the sky’ drones and camera-equipped balloons to help media that cannot afford news helicopters cover breaking news in dangerous situations or difficult-to-reach locations.”  It has the potential to address two of the main shortcomings faced by traditional news media in the region.  First, journalists who lack financial and technological resources to conduct remote reporting often are “‘risking life and equipment’” to get their story.  Second, by not resorting to state-owned UAS, journalists are able to maintain editorial independence in their reporting.

Use of UAS for journalism and other civilian purposes in the region is facing the same regulatory challenges which are delaying their widespread deployment in the U.S.  Although the Kenyan government has not yet established a regulatory framework for civilian UAS, it has indefinitely grounded both the Flying Donkey Challenge (a high-profile, Swiss-funded competition to develop flying robots which are capable of carrying heavy cargo over long distances) and the Ol Pejeta Conservancy’s wildlife surveillance drone.  Similarly, earlier this year, the South African Civil Aviation Authority announced a “clampdown” on civilian UAS, a warning that some observers believe has chilled this nascent industry.  However, it is promising that the South African government has stated that it is “cognizant of the urgent need and demand for UAS usage” and that it will be releasing an interim guidance document by March 31st of next year.  In addition, South Africa and other countries in the International Civil Aviation Organisation Unmanned Aircraft Systems Study Group are continuing to work to develop a safe and harmonised regulatory framework.

In the meantime, African SkyCAM (which is looking to expand to Mozambique and Namibia) and others will need to pay careful attention to finding the proper balance between business, compliance, and innovation.

ARTICLE BY

Mipe Okunseinde
 
OF 
Covington & Burling LLP

The Exploding Use of Drones

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The potential for drones, i.e., unmanned aircraft systems (“UAS”), is tremendous.  After years of being associated with military operations, the civilian UAS market is expected to dramatically expand in the United States in the next ten years.  A multitude of conceivable applications for UAS — including mapping, weather forecasting, law enforcement, news gathering, real estate, photography, agriculture, and freight transport — promises to change the way business is done across a diverse array of industries and companies.

By any measure, the UAS market is significant and growing. Optimistic analysts project that annual U.S. civilian spending on UAS will grow from $1.15 billion in 2015 to $4 billion in 2020 and $5.11 billion in 2025.   Less sanguine analysts place the annual worldwide civilian UAS market between $498 million and $1 billion  by 2020.  The FAA predicts that UAS will be the “most dynamic growth sector within aviation industry.”

However, many legal and regulatory obstacles remain before drones can be widely used in our national airspace.  Current federal law prohibits UAS in most circumstances with exceptions for test flights and government aircraft that secure special permission from the FAA.

This will change because Congress delegated to the Federal Aviation Administration (FAA) the task of integrating UAS in to the National Airspace System by September 2015.  Quite apart from the regulatory framework developed by the FAA, numerous legal issues will arise ranging from takings and property torts relating to flights over private property to privacy issues.  State tort laws will be heavily involved.

Notwithstanding these legal and regulatory challenges to widespread UAS usage, there is great momentum and potential for this new form of aviation.  Businesses should focus on how they can benefit from the use of drones.  Once they have done so, they should navigate the legal and regulatory thicket.  The rewards could be substantial.

Article By:

Jack L. Schenendorf
Of:
Covington & Burling LLP