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Q. How are federal agencies regulating nonmilitary drones?

Currently, the FAA restricts commercial applications of drones as it studies how to incorporate drones safely into national airspace. Until the rules are developed, companies that want to operate drones for commercial purposes must apply to the FAA for an exemption. Those exemptions are increasing quickly. Whereas in April 2015 only about 100 companies had received exemptions, by September that number had reached 700, with as many as 50 exemptions granted per week.

As suggested earlier, some of the drone applications are more controversial than others. For example, those involving agriculture are generally less contentious, in part since they do not generally present the same privacy concerns as flying over a city. Nonetheless, a July 2014 FAA ruling stated that "farmers, ranchers and all commercial operators are prohibited from using UASs until the FAA institutes regulations for the safe integration of UASs into National Airspace."64 The slight bump in FAA exemptions given to agricultural drones in 2015 suggests that the reins may be loosening slightly. Indeed, Congress tasked the FAA with better integrating commercial drones, rules that seek to balance the safety concerns of having as many as 30,000 drones flying in national airspace by 2030 with industry's concerns that it not forgo the enormous commercial upside of a more permissive policy.65

In the meantime, as it drafted these rules, the FAA issued a "myth-busting" public service announcement that sought to clarify a number of misconceptions about its commercial drone policy. Among other things, the FAA first stated that there were already about 7,500 small commercial drones in operation in the United States as of 2014. Second, it offered a reminder that even flying below 400 ft. was not necessarily a legal commercial drone activity. Third, though flying a hobby or recreational drone below 400 ft. is both legal and did not require FAA approval, it must be done following FAA safety guidelines. This regulation precludes flying for remuneration or any type of commercial purpose, which is banned via the FAA Modernization and Reform Act of 2012. The spirit of the regulations, according to Michael Huerta, the Director of the FAA, is to prevent drones from interfering with larger aircraft that carry passengers and whose safety could be compromised if they came into contact with drones.66 Fourth, flying a commercial drone would continue to require a certificate of waiver or authorization that the FAA would issue on a case-by-case basis and that it had mechanisms at its disposal to ensure compliance with the regulations and exemptions it has issued. Lastly, the FAA conceded that the United States might seem to be lagging behind other countries in terms of commercial drone integration but that the delay is reasonable since the United States has "the busiest, most complex airspace in the world."67 On the other hand, as later sections will suggest, a better way to state it is that other countries have lagged behind the United States in regulating drones, and are only now catching up policy-wise with the demand in commercial drones.

One of the primary concerns driving FAA regulations of commercial drones is the avoidance of midair collisions. As FAA Director Huerta puts it, the "see-and-avoid" principle is a "bedrock principle of aviation... the pilots take action to avoid one another."68 With 70,000 flights per day in the United States and commercial and recreational flights operating at various altitudes, "the risk of collision between these users and unmanned aircraft must be adequately mitigated before unmanned aircraft can routinely utilize the national airspace system."69 A government report concluded that unmanned aircraft did not currently have these capabilities. Strict limits on where drones fly have been imposed, in particular the line-of-sight provision, which helps the drone operator avoid air traffic.70

The FAA had also initially stated that they would require private pilot's licenses to maintain a predictive awareness of where other pilots would be operating. Even if drone operators cannot see and avoid other aircraft, at least they would know the rules about what altitudes to use, how high to stay above populated areas, and which direction the oncoming pilot would turn in case of an impending head-on collision. All of these are rules that anyone with a private pilot's license would know. Having initially suggested that certification would entail obtaining a pilot's license, the government appeared to reverse its position on requiring a private pilot's license for obtaining FAA certification to fly commercial drones (those that have received exemptions). Instead, applicants would be required to take an exam that tests basic aeronautical information, emergency procedures, and airspace classification, a much lower barrier to entry for gaining certification than a pilot's license.

While the move away from the pilot's license appeared to be an about-face, the FAA is clearly chasing a moving target. Because of continuous, dramatic changes to the technology, regulations have struggled to keep pace. The FAA is trying to balance what seems like the inexorable push of commercial drone technology, which favors more rapid integration, with the competing pressures of safety, which could push in a more restrictive direction. In response to these challenges, the FAA set up six test locations across the United States. Congress required that the FAA establish six sites that can help test the interaction between drones and manned aircraft, which it has done in Virginia, North Dakota, Alaska, Nevada, Texas, and New York. As the FAA Administrator Michael Huerta advertised, "Having all six national test sites up and running will give us more and better data to help expand the safe use of unmanned aircraft into our airspace."71

Drone producers and industries that drones would serve have questioned the regulations discussed above. There are several lines of criticism. One is that the regulations artificially group drones into commercial drones, whose use is currently prohibited, and hobbyists, who fly in their backyard. Commercial drones, this argument goes, are not intrinsically problematic, but become a concern based on where they are used, and hobbyists can actually present problems if they are used in densely populated areas. Rural and urban flight environments are vastly different from each another. For the latter, crowded airspace is a primary concern, but is not an issue for rural flight environments. A farmer using a drone to survey commercial crops is very different than a city-dwelling drone hobbyist taking flight in the city. Context would suggest that the 400-foot ceiling and line-of-sight requirements would be artificial and unnecessary in rural places where drones operate over vast spaces. According to this view, regulations would be based not on commercial versus hobbyist applications but on where the drone flies, whether in crowded urban environments or less densely populated rural ones.

Another criticism deals with the level of training required to operate a drone, with particularly forceful criticism lobbed against the earlier FAA expectation that individuals have a private pilot's license. The FAA had planned to require that drone operators obtain a license, which includes dozens of hours of work with an expensive flight instructor, a medical examination, and many hours of additional classroom time. On the one hand, the proposal seemed sound for the reasons previously mentioned, namely, that individuals operating a drone should also learn where and how to fly in airspace, how to communicate with air traffic control, and what to do in an emergency situation. However, for most potential drone operators, especially those who are not in urban areas, these types of issues—for example, the ability to fly in crowded airspace—seemed like overkill.72 In terms of commercial applications, the 40 required flight hours and roughly $10,000 cost limit the potential workforce.73 Indeed, that the FAA jettisoned the idea of a pilot's license in favor of the drone "certificate" was a gesture toward the concern that the bar not be excessively high for operating a commercial drone.

A line of criticism less likely to resonate is the opposition by groups such as the AUVSI to the existing ban on commercial drones. The association reports that for every year the ban is in place the United States foregoes $10 billion in economic benefits, which comes in the form of foregone efficiencies brought about by the intersection between drones and industry such as deliveries, monitoring crops, and so on.74 Allowing all commercial drones as a matter of policy seems highly unlikely, and the FAA defends its quite cautious approach, stating that it aims to "integrate unmanned aircraft into the busiest, most complex airspace system in the world—and to do so while we maintain our mission—protecting the safety of the American people in the air and on the ground. That is why we are taking a staged approach to the integration of these new airspace users."75 By "staged," the FAA likely means evolutionary, with the policy trying to keep pace with changes in the technology.

Critics, however, suggest that the staged exemptions amount to an ad hoc rather than coherent policy since the FAA seems to be issuing a slow drip of exemptions that are not based on a clear decision rule but rather responses to requests, raising the prospect of making policy-by-exemption.

A last criticism addresses whether the regulations are enforceable. With about 25 incidents in which pilots encounter drones reported per month and the burgeoning individual and commercial demand for drones, actually determining which drones are flying above 400 ft., by an airport, or for commercial purposes will prove difficult. The FAA has acknowledged this difficulty and urged individual operators of drones to heed the regulations lest there be midair collisions. However, with drones being relatively low cost and bearing no risk to the operator, there may be few incentives for self-regulation. The FAA director acknowledged that this "is certainly a serious concern and it is something that I am concerned about."76 At the end of 2014, the FAA was investigating pictures taken from a drone above the 1,005-ft .-fall Seattle Space Needle, a clear violation of the 400-ft. flight limit. The photos appear to have been taken by a Seattle ski and skateboard shop called Casual Industrees and later posted on its website. In a response to questions about the safety of flying by the Space Needle on the online forum Reddit, a spokesperson for the company said "Thank you for the warning, hopefully we (won't) get in trouble. We are claiming ignorance on that one. Enjoy the photo! Didn't know it was so risky."77 Illegal too, they might have added.

Aside from the enforceability question, a number of court cases have actually challenged the FAA's ability to ban commercial drones. One case found that the FAA was not entitled to fine an aerial photographer who had been using a drone in Virginia to make a commercial video. The plaintiff's legal counsel claimed that the drone was equivalent to a model aircraft. The case was later overturned, reversing the earlier decision. The basis for this reversal was the claim that any aircraft taking to the skies is subject to FAA regulations by virtue of the FAA's broad definition of "aircraft," which drones fall under. This ruling is still subject to appeal. This is unlikely to be the last word in ongoing debates about the line between hobby and commercial aircraft and appropriate regulations of each.

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