The United States has the most complicated airspace in the world. With some of the world's busiest airports, U.S. aviation includes commercial airliners, logistics and shipping aircraft, private aircraft and emergency responders. Forward-thinking companies should be thinking – right now – about a number of considerations and steps to take to integrate drones into this airspace. Holland & Knight attorneys can assist you in each step along the way.
Specifically, our Drone Team includes a former National Transportation Safety Board (NTSB) general counsel, FAA regulatory attorneys, privacy attorneys, FCC spectrum attorneys, an FAA policy lobbyist, a privacy lobbyist and others. Our comprehensive approach to the legal, regulatory and policy issues regarding UAS technology ensures Holland & Knight clients have access to attorneys with great depth of experience on the national level who also have drone experience. We leverage our team, our contacts and working relationships related to the regulation of UAS technology to benefit our clients.
Our team has assisted clients in numerous issues involving drone use, including:
- advising on compliance with existing regulations
- submitting applications to gain expedited UAS approvals or Section 333 exemptions
- submitting comments to the FAA on behalf of clients regarding its proposed UAS rule and to the National Telecommunications and Information Administration (NTIA) regarding privacy concerns surrounding drone use
- assisting our clients in conducting testing at a federally established test site
- working with Congress and the administration to shore up political support for UAS integration
What Will It Take for Drones to Fly?
A Safe Flight Plan
While public policy and privacy concerns about the use of UAS are complex, the overarching issue is safety. The FAA will permit their widespread operation only when UAS can safely navigate in a system populated by commercial and general aviation aircraft and with no jeopardy to those on the ground. Final regulations governing small UAS flights were required by Congress to be in place by August 2014, but the FAA currently estimates a final rulemaking on this topic will be delayed until at least the middle of 2016. However, Congress gave FAA the authority to approve certain safe UAS use on an expedited basis (Section 333 of Public Law 112-95).
Fortunately, the technology that will allow UAS to sense and avoid other aircraft is rapidly maturing. Soon we will see drones emerge that are capable of safely functioning even beyond the line of sight and active control of an operator.
The FAA understands these technology issues and is actively pursuing a risk-based regulatory structure that preserves safety in the U.S. aviation system. With the right input from the stakeholders and safety protocols in place, UAS use is likely to increase substantially.
A Regulatory Framework
Unmanned aerial technology for use in the U.S. is here now. The FAA is currently writing the policies and regulations to govern the civilian operation of UAS. In addition, the FAA has begun approving Section 333 applications.
Strong public policy favors the use of drones in U.S. airspace. Significant property interests, including management of crops, wildlife, facilities and utilities, will be well-served by drones, as will law enforcement, emergency responders and countless technology-based innovations in everyday commerce. But defining the rules of the federal airspace will be a complex undertaking, and will set the contours of economic growth and worldwide innovation.
Private industry and tribal, state and local governments must assert themselves in the public discourse on federal UAS policy and regulation. The emerging law and regulations that are currently being shaped will create the legal framework for decades to come.
First Amendment/Privacy Balance
Statutes and case law already define boundaries between the First Amendment right to gather news and public safety and privacy. Establishing reasonable constraints on aerial newsgathering is entirely appropriate and workable. Because of Holland & Knight’s leadership, the media is a part of that discussion. From traffic reporting to coastal hurricane watches and mountain wildfires, lower-cost aerial photography would help America's newsrooms bring more accurate and useful information to the public.
The public needs to feel comfortable that their privacy is being taken into account as UAS technology becomes more widespread. Robust state-based privacy laws and jurisprudence exist to protect privacy.
A Telecommunication Network
While the FAA has been charged with the air-safety aspects of this process, it will not be the only federal agency that helps craft a workable regulatory structure. Drones need wireless control systems and dedicated signal frequencies. The Federal Communications Commission (FCC) must be engaged in establishing reliable parameters for command and control of these important devices, as well as the ability of UAS to transmit live data – video and audio – to their ground-based controllers.