Legal uncertainty could hamper growth of drone industry, panelists say

ATLANTA—Whether an unmanned aircraft system (UAS)—commonly known as a “drone”—should be subject to similar safety regulations as manned aircraft was a topic of spirited debate yesterday, with panelists at the Unmanned Systems 2015 conference noting that the answer could influence the growth rate of the industry in the United States.

New UAS rules could be in place by next fall, according to James Williams, manager of the Federal Aviation Administration (FAA) UAS integration office. The FAA recently received more than 4,500 people responses to proposed rules to establish safety guidelines for a UAS weighing less than 55 pounds and inquiring whether separate rules should govern the operation of a small UAS weighing less than 4.4 pounds.

“The standard timeline from the completion of a comment period to federal rule is 16 months,” Williams said during yesterday's panel discussion examining UAS legal issues. “I believe that the FAA will do everything within its power to meet that timeline or beat it.

“It is a fairly complex rule and there are a lot of comments that have to be resolved, and it will take some time to do it. But it’s an administrator-level priority to get this done, and I believe this interest is shared all the way up the chain inside the executive branch. I’m confident it will move forward as fast as humanly possible.”

Gregory McNeal, a law professor at Pepperdine University, described the proposed FAA rules as a “positive first step” but questioned whether the regulations will address the needs of the growing, fast-evolving drone industry.

“It’s a great regulation for 2013 or 2014; if you were looking to fly in 2013, it would have everything that you would need,” McNeal said. “The problem is that, when it gets implemented in 2016, technology will have advanced beyond it, so the question is whether or not the agency is going to be able to respond to that.”

“There are still a lot of uncertainties that I think will catch some of the consumer operators off guard. For the commercial operators, there are very big restrictions. When we look at 2016, the United States will be behind Europe. Europe’s looking to have a very risk-based approach, but it doesn’t look like we have moved in that direction.”

Although the FAA does classify UAS as aircraft, the proposal includes key differences from the rules associated with plane or helicopter operation. Charles Tobin, who represents news-media organizations as chairman of the national media practice team for the law firm of Holland & Knight, expressed optimism about the proposed FAA rules, noting that the proposal calls for “certificated operators” instead of requiring a UAS to be controlled by someone with private pilot licensing.

Similarly, the FAA proposal does not require each UAS to be certified as safe under the national aerospace system, “a proposition that I think would have decimated the industry, at least in this country,” according to Brendan Schulman, head of the UAS group at the law firm of Kramer Levin Naftalis & Frankel. But other potential rules that could prohibit UAS operations at night, near people or without visual line of sight to the drone could have a negative impact on the industry, he said.

“I think [drone-based package] delivery can hard and will take working out,” Schulman said. “Even something as simple as doing a search-and-rescue operation—when someone goes missing at night—using an infrared sensor is currently proposed to be prohibited under the NPRM.

“I think we’ll get there. Is it going to be a rule that reflects what the industry has become in 2017? I’m a little worried about that.”

Schulman said he does not believe Congress intended for UAS rules to mirror the rules of larger manned aircraft in all situations, proposing that simplified “micro category” rules be established for drones that weigh less than 4.4 pounds that would not require operator certification and registration.

“Find out the category that’s safe and let people go use it,” Schulman said.