On October 5, 2018, President Donald Trump signed into law the FAA Reauthorization Act of 2018, which funds the Federal Aviation Administration (FAA) for the next five years. In addition to a variety of security and safety improvements intended primarily to benefit airline passengers, Congress legislated major changes for the regulation of small unmanned aircraft system (UAS or drone) operations. In the coming year, we should expect to see an overhaul of the FAA’s existing regulations of small commercial drone operations (Part 107), an expansion of federally authorized UAS testing, the further integration of drones into the National Airspace System (NAS)—including fully automated drones used for parcel delivery (get ready, FedEx and UPS)—and a push to develop standards and, potentially, regulations protecting the privacy of individuals whose personal data is collected by drones.
Subtitle B of the FAA Reauthorization Act concerns UASs and sets forth several notable developments:
- Prioritizing the FAA’s development of regulations to expand the operation of small UASs (currently operating under Part 107) to operations Beyond the Visual Line of Sight, at night and over persons. (Section 370)
- Requiring the FAA to update existing regulations within one year to permit the carriage of property by small commercial UAS operators within the United States, and authorizing the FAA to grant interim approvals to current small UAS operators under the existing regulatory framework. (Section 348)
- Creating a framework to establish a single standard for regulating UAS operations, whether operated for compensation or for recreation. Hobbyists will now have to complete aeronautical knowledge testing and comply with other operating requirements currently applicable only to commercial drone operators. (Section 349)
- Directing the Government Accountability Office, the Department of Transportation and the National Telecommunications and Information Administration to carry out a review of the privacy issues and concerns associated with the operation of UASs in the NAS, and encouraging commercial drone users who collect personal, private information to make publicly available their written privacy policies regarding the collection, use, retention and dissemination of any data collected during drone operations. (Sections 357, 358 and 378)
- Requiring the FAA to consult with the Department of Homeland Security and the Department of Justice, which are authorized to take countermeasures against a UAS posing a danger to federal facilities and assets, including shooting one down if deemed a “credible threat.” (Section 364)
- Establishing criminal penalties for an individual operating a UAS who knowingly or recklessly interferes with wildfire suppression or law enforcement or emergency response effort related to wildfire suppression, and making it a crime to knowingly or recklessly operate a UAS in a manner that interferes with or disrupts the operation of a manned aircraft or too close to a runway. (Section 382)
While the changes in Subtitle B of the FAA Reauthorization Act have gained much support among UAS industry stakeholders, operators of model aircraft and recreational UASs have criticized the act for subjecting hobbyists to unnecessary and burdensome regulations that should be limited to commercial drone operators. Regardless, the act provides a pathway forward for the industry that will likely accelerate the implementation of new regulations to permit more advanced drone operations and for the testing of new technologies that will positively impact consumers and the retail economy as a whole. As noted above, some of the first beneficiaries of this expanded operational environment for drones are likely to be law enforcement, parcel shippers and online retailers (Amazon Prime Air is coming), food delivery services, and other industries that are in line to take advantage of more technologically advanced drone operations.
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Andrew Zimmitti is a complex commercial litigator, certificated private pilot and leader of Manatt’s unmanned aircraft (UA) practice. Manatt’s UA practice brings together a cross-disciplinary group of attorneys with a broad range of experience to assist clients with commercial UA operational and ownership concerns. As an emerging technology, the commercial use of drones presents unique legal challenges and opportunities that manufacturers, operators and owners must consider. Understanding and adapting to this rapidly changing legal and regulatory landscape is essential. Manatt’s practice team brings together the expertise, insight and legal services needed to successfully navigate in this growing industry.