Trump Executive Order Introduces Pilot Program

As part of its mission to make America Great Again, President Trump has signed an executive order under which “our nation will move faster, fly higher, and soar proudly toward the next great chapter of American aviation.” In fact, the executive order aims to establish a pilot program that could have significant effects on the current state of drone regulation.  While the pilot program describes the lofty goals of “promoting innovation” and “balancing national and local interests,” it seems to me that the biggest possible practical impact could be a loosening of the current prohibition against operating  beyond the line-of-sight of the drone operator.  This is a key restriction that presents an impediment to using drones to deliver goods.  No surprise that the drone industry welcomed the executive order.  Here is a link to the executive order and related materialsHere is a link to an article in today’s San Francisco Chronicle about the executive order that includes an interview with yours truly.

This cynical observer wonders, in the current political climate, when, and even whether, the concepts embedded in the executive order will become reality.  It also is possible that if any relaxation of current rules implicates safety or —perhaps more important—privacy concerns, States, Municipalities, or citizen groups could take legal action to seek to block any such rules. I emphasize privacy because the FAA’s jurisdiction over drone regulations is focused on the safety of the national airspace and does not extend to privacy concerns that are outside its purview.

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Federal Case Declares Local Drone Ordinance Illegal

As we have previously posted, Senator Feinstein has proposed a bill that would clarify a key legal issue that has stirred up controversy among drone-law practitioners—namely the extent to which FAA regulations preempt efforts by local government to regulate drone use. Senator Feinstein’s measure would free up local government to regulate drone use so long as such regulations did not interfere with the safety and efficiency of the national air-space system. Without this bill, there is a reasonable argument that any and all local safety regulations are preempted.

The need for legislative clarity has now become more significant. For the first time, a federal district court has ruled that the FAA’s jurisdiction over drones has broad preemptive effect on local regulations under the theory of Conflict Preemption, about which we have previously blogged. In Singer v. City of Newton, a federal judge has now struck down a Newton, Massachusetts ordinance that, among other things, required registration of all drones and prohibited flight less than 400 feet above private and City property (under FAA regulations drones may only fly less than 400 feet above the ground). The City argued that such requirements were within its powers to protect the privacy interests of its residents.  But the court ruled that these two provisions in particular impermissibly conflicted with the FAA’s preemptive authority to integrate drones into the national airspace. You can find the opinion here. The judge’s ruling is of course not the last word as the City could appeal, or could modify its ordinance to comply with the court’s ruling.

At a minimum, this case should give local government pause before regulating drone use in their municipalities.

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Update from California: (Almost) All’s Quiet on the Western Front

Here in California, 2017 has been a very quiet legislative session with regard to drone law. Prior years have seen many attempts—many unsuccessful—to regulate drone use in a variety of ways.  The current legislative session ended on September 15 with only a single drone-related bill passed by the legislature.  AB 527 (Caballero) will make modest revisions to existing law regarding licensure requirements for those who operate pest control aircraft. The Bill’s author, Anna Caballero, represents the 30th assembly district, which includes the Pajaro and Salinas valleys—both major agricultural areas. If the Governor signs AB 527 any person operating an unmanned aircraft in pest control will need to be certified to do so by the California Department of Health—this certification is an expansion of the procedures already in place for those who conduct pest control operations using manned aircraft. The certification process does not appear to be onerous, but will certainly require more training and expertise than the current unregulated legal landscape.

This bill reflects the increased use of drone technology in the agriculture industry and is yet another example of the law trying to catch up to fast-growing technology in the drone field. This trend will only continue as the industry continues to innovate and find new ways to make use of drone technology. The Governor has until October 15 to sign or veto AB 527. Inaction means the bill becomes law.

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Drone Delivery…To Prison

News over the weekend that a South Carolina prisoner who recently escaped from jail (and was just recaptured) managed his escape by way of a drone. Convicted kidnapper James Causey arranged for delivery of the tools he needed for his escape via drone–including guns, wirecutters, fake ID, and cash.

The California legislature has twice tried to enact a law that would make it a misdemeanor (a misdemeanor!) to operate a drone on or above the grounds of a state prison or a jail but failed both times. The Governor vetoed one of the two bills, arguing that it criminalized conduct that was already prohibited, and stating that it therefore “creates increasing complexity without commensurate benefit.” The other bill died before passage.

I am unaware of any efforts to prosecute drone flight over prisons under any existing law. Even were prison guards to monitor prison fences, the most one might expect would be to intercept a drone delivery after landing. The difficulties inherent in locating and apprehending the drone operator encapsulates many of the novel legal issues surrounding drone technology that are the subject of this blog:

  • May the FAA require registration of a drone? The registration process was recently overturned by a federal court, but a bill is before Congress to authorize the FAA to continue registering all drones.
  • Is it illegal to operate a drone over prisons absent specific legislation? In California, it is illegal to bring prohibited items into a state prison or jail, and it is also illegal to have unauthorized communication with inmates. But it is not hard to imagine legal arguments that simply flying a drone over a prison wall does not necessarily implicate those violations.
  • May a prison guard take down a drone flying over a prison? Recent California law limits the exposure to civil liability of any emergency responder for damaging a drone that interfered with the provision of emergency services. But this law likely would not apply to prison officials.
  • Under what circumstances must law enforcement obtain a warrant before apprehending the drone operator – in particular if law enforcement is using anti-drone technology (or another drone) to locate the operator?
  • To what extent is any State or local law governing drone flight over prison walls preempted by federal law? A bill before Congress would clarify this important question.

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Proposed Federal Drone Laws Aired

After some time without any legislative action, two pieces of federal legislation are being floated. Most recently, on June 23, 2017 Senator Mark Warner (D-VA) introduced legislation that, in addition to providing modest funding for a number of drone-related initiatives, would essentially overturn the recent court decision that held the FAA exceeded its statutory authority when it required all recreational drone users to register their drones on an FAA website. The Warner legislation would allow for such registration activities to continue. You can find the text of the proposed legislation here.

Last month, Senator Feinstein floated a bill that would help clarify a key ambiguity in the state of Drone Law—namely the extent to which FAA regulations preempt state and local government from regulating drone use within their jurisdictions. While the FAA would continue to be able to propound regulations with preemptive effect over the safety and efficiency of the national air-space system, regulations would not preempt State or local government from regulating drone use to protect public safety, personal privacy, and property rights, as well as manage land use and restrict nuisance and noise pollution. If signed into law, this measure would make it much simpler for local government to regulate drone use, as well as make positive uses of drones for a host of governmental purposes. You can find the text of the proposed legislation here

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Contracting with Commercial Drone Operators in a New Legal Landscape

Is your marketing department planning on hiring someone to take aerial photography using a drone?  There used to be no way to protect your business against the unknown risks of commercial drone use in an unregulated environment. That is no longer the case. There are a number of key contractual provisions that you should now include in any contract that will involve the use of a drone. A standard professional services agreement likely will not provide adequate protection against some avoidable risks of increased liability. Your Contractor must have drone-specific licenses and insurance—concepts that one year ago did not exist but that now are standard in the drone industry. You should contractually require your contractor to comply with all federal, state, and local regulations regarding drone operation and safety—again such regulations did not exist a year ago. You should also not ignore Intellectual Property and Privacy issues. Take a look at your standard indemnity clause and expand it to include drone-specific claims or losses.  With a little bit of effort, it is now possible to contract with a drone operator and not expose your business to unnecessary risk.

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To Permit or Not to Permit

In the early days of commercial drone use—say two years ago—most local government agencies took a prescriptive approach to done operation in their jurisdictions.  Many cities and even State agencies adopted blanket prohibitions against drone use—or at least against drone use in specified areas.  Now agencies more and more are asking themselves whether such broad prohibitions are practical, enforceable, or even necessary.  As a result, permitting mechanisms are beginning to spring up.  So far, permitting requirements for compliance are often very stringent.  Some jurisdictions are following the model of the California Department of Transportation (Caltrans).  Caltrans requires the following—even if it grants a permit in the first instance—as a condition of granting a filming permit over Caltrans streets or highways.

  • Drone filling must be over a closed set.
  • The radius constituting the mandatory closed set must include 500-feet beyond any point of the roadway.
  • Drone pilots (with the approval of Caltrans) may decrease the perimeter of the closed set only if barriers or structures are present that would sufficiently protect nonparticipating persons from the Drone and/or debris in the event of an accident.
  • Traffic Control will be enforced from both directions.
  • Filming may be required to occur in very short intervals—1-3 minutes—to minimize traffic interruptions.
  • Productions must work with all applicable city jurisdictions to facilitate the closing of all relevant over-crossings and under-crossings during filming with a Drone.
  • If the road to be closed for Drone filming is adjacent to a beach or park, permission must also be granted from the Park’s film liaison.

These restrictions make sense, but do mean that a small-scale drone video shoot may take on some of the characteristics of a bigger budget Hollywood movie.  Don’t forget Craft Services!

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Commercial Drone Insurance – Now a Reality

As new Drone laws and regulations start coming into focus, the market for commercial drone insurance is also becoming more standardized and readily available. This is not surprising—and in some respects mirrors the development of auto insurance 125 years ago (the first auto insurance policies, written in the 1890s, were actually adaptation of horse-drawn vehicle liability policies). We are now being asked with increasing frequency, by both drone operators and those who would contract with drone operators, what kind of insurance is available and should be obtained.

The good news is that commercial drone liability policy is now readily available. As best as we can tell, premiums for policies that cover liability up to $1 Million are in the neighborhood of $800 per year. Interestingly, on-demand policies are also available that provide coverage by the minute for a nominal hourly rate—such policies may be prudent for recreational operators but are unlikely to satisfy those who would seek to do a business deal with a drone operator. In addition to the new license requirement for commercial drone operators, we think carrying drone liability insurance coverage will quickly become an essential requirement for doing business, if it is not already.

With the growing availability of commercial drone liability policies, it is also increasingly clear that general commercial or homeowner’s insurance coverage will not suffice. Obtaining drone-specific coverage is not just smart, it is probably essential for anyone operating a drone-related business. In 2016, the California legislature enacted, but the Governor vetoed, a bill which would have required any drone operator to carry liability insurance at minimum thresholds set by the State—similar to cars. We can expect this bill to be revived, and required in other States. Inevitably, like cars, States will enact laws requiring drone operators to obtain minimum amounts of liability insurance.

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An Update on Commercial Drone Law in California (Video)

In 2016, the California legislature sent six bills to the governor, who signed two and vetoed four.

The two bills are:

  1. AB1680 – Makes it a misdemeanor to interfere with first responders or emergency personnel at the scene of an emergency
  2. SB807 –  Protects emergency first responders from liability for damage to a drone that is interfering with the responder’s ability to provide emergency service

Also, the Federal Aviation Administration (FAA) has released its final rule on commercial drone operation, which may affect any state laws and local ordinances.

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New California Drone Law!

On September 1, we updated you on the six bills passed by the California legislature by the end of the 2016 legislative session. With only hours to spare, Governor Brown has signed two of the six into law, and has vetoed four. Along with the issuance of the FAA rule earlier this year, there is finally the beginnings of a body of law governing the use of commercial and recreational drones in California.

The two bills signed into law are SB 807 and AB 1680.

SB 807 amends the Civil Code to limit the exposure to civil liability of any emergency responder for damaging a drone that interfered with the provision of emergency services. The bill applies to public and private entities and to persons regardless of whether they are paid or volunteer. One of the more frequent questions I am asked from public agencies is “Is a firefighter liable if he knocks down a drone that is in his way while fighting a fire?” As of January 1, 2017, there is now an answer to this question—“No!.”

AB 1680 amends the Penal Code to add drone operators to the existing requirement that no person may stop at the scene of an emergency, unless as part of their job, and interfere with emergency personnel in the performance of their duties. Violation is a misdemeanor. Interesting, while the pre-existing law focuses on persons who are physically at the scene of an emergency, AB 1680 now criminalizes interference regardless of the drone operator’s location so long as the drone itself is at the scene of the emergency. Another frequent question I am asked is “How do I stop someone whose drone is interfering with firefighters?” As a result of AB 1680, law enforcement may be able to cite a drone operator who interferes with emergency personnel in the performance of their duties.

The Governor vetoed AB 1662, AB 2148, AB 2320, and AB 2724.

AB 1662 would have required the operator of a drone that is involved in an accident resulting in injury or damage to a person or property to immediately land the drone in the nearest safe place. The operator must then either: 1) present valid ID to the injured person, 2) locate the owner of the damaged property and present valid ID if requested, or 3) leave a note with the name and address of the operator and the circumstances of the incident in a conspicuous place on the damaged property and notify the police. This requirement would not apply to law enforcement personnel acting within the scope of their employment or to anyone authorized by the FAA.

In his veto message, Governor Brown emphasized the need for a comprehensive approach to drone regulation and stated that “Piecemeal is not the way to go.”

AB 2148 would have made it unlawful for any person to operate a drone over lands or waters managed by the Department of Fish and Wildlife and the Department of Parks and Recreation unless authorized by those agencies. The bill would also have made it illegal to use a drone to catch fish or other wildlife.

In his veto message, Governor Brown stated the law was unnecessary because the departments had authority to promulgate their own regulations without the need for statute.

AB 2320 would have applied drone use to existing law regarding “stay-away” orders.

In his veto message, Governor Brown stated that current law was sufficient to prosecute the operation of a drone in a manner that violates a protective order.

AB 2724 would have required drones to include geofencing capability to prohibit the drone from flying within any area prohibited by local, state, or federal law. It also would have required all drone owners to procure insurance—potentially sparking a new drone-insurance industry that is developing any way. Had it been signed by the Governor, this bill could have had a profound effect on the drone industry and on drone use in general.

In his veto message, Governor Brown stated that the bill would have created “significant regulatory confusion” and would likely be preempted by federal law. He emphasized the need for comprehensive regulations and again stated that “Piecemeal is not the way to go.”

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California Legislature Sends Six Drone Bills to the Governor’s Desk

With the end of the legislative session, the California legislature sent the following six bills to the Governor’s desk:

Most of these bills criminalize non-compliance with the law and either create a new crime or expand the scope of an existing crime. Interestingly, just last year, the Governor vetoed a number of bills, including three drone related proposals, because the bills created a new crime and, the Governor observed, “[t]his multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.” It seems the Legislature is sending the Governor a message that certain drone related conduct requires a criminal penalty and should be proscribed by the State.

Additionally, some of the bills sent to the Governor this year touch on similar concerns addressed by the Legislature last year, including impeding the work of emergency personnel. While it is unclear how the Governor will act on these proposals, it is evident that the Legislature is undeterred by the Governor’s rejection of past drone related legislative proposals.

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FAA Rule in Effect: Waiver and Testing Process Online at FAA Website

As of August 29, 2016 the FAA’s new rule on small unmanned aircraft systems (ie drones) rule is in effect.  The specific requirements of new Part 107 of Title 14 of the Code of Federal Regulations are well known by now.  It will be interesting to see how quickly the FAA acts on its new online waiver process for those who seek to operate outside of the Part 107 framework.

Also of interest is the requirement that in order to fly a drone legally for commercial purposes, the operator must pass a test at an FAA-approved facility and pass a background check in order to get a “remote pilot airman” certificate.  This is not an easy test—I certainly would fail without considerable preparation.  A sample question is:

(Refer to FAA-CT-8080-2G, Figure 59, area 2.) The chart shows a gray line with “VR1667, VR1617, VR1638, and VR1668.” Could this area present a hazard to the operations of a small UA?
A. No, all operations will be above 400 feet.
B. Yes, this is a Military Training Route from 1,500 feet AGL.
C. Yes, the defined route provides traffic separation to manned aircraft.

Already, a number of business have sprung up offering to help with the certification process—many with websites that try and look like official government websites.  Anyone wanting to (continue) to operate a drone for commercial purposes will have to pass the FAA’s test.  It is important to note that the certification is only required for commercial operation, not recreational. 

This distinction between recreational and commercial use will continue to be a murky one.  Certainly, for local government seeking to regulate drone use, it makes no difference, for instance, whether the drone interfering with firefighting  operations is being flown for commercial or recreational use.  Similarly, owners and operators or critical infrastructure do not care about the purpose for drone flight that poses a potential security and safety risk.

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LA Times Examines Lobbying in Sacramento by Drone Manufacturers

Steven Miller was quoted in Sunday’s LA Times. The article focuses on the potential impact of increased lobbying by drone manufacturers in Sacramento. As a patchwork of regulations begin to fill the void, drone makers are exerting what influence they can to affect legislation involving the more than 500,000 drones already registered by the FAA.

Read the article here »

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White House Buries the Lead in Announcing Its Investment in Drone Research

The Obama administration is hosting a workshop today on Drones and the Future of Aviation — “to advance and celebrate the potential of unmanned aircraft systems.”  Read the formal announcement here.

The workshop announcement emphasizes the $35 Million in research funding by the National Science Foundation into the potential applications for commercial drones, specifically calling out monitoring and inspection of physical infrastructure, smart disaster response, agricultural monitoring, and the study of severe storms.

But just as important, and probably receiving less attention, is the call to the UAS industry to develop “best practices” regarding privacy.   This invitation to industry to set standards is in keeping with much of the drone regulation to date.  Given the paucity of federal and State laws on the topic, local government in particular may end up looking to industry standards to assist it in developing and setting rules relating to privacy standards/rights.    The ACLU also is actively involved in setting such standards and has developed a series of recommendations for local government’s use of drones.

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Steven Miller Explains Drones and Privacy on CBS 13, Sacramento

CBS Channel 13 (Sacramento, California) came to Steven Miller for clarification on the legality of hovering a drone over private property.

“You can be liable for invasion of privacy if you use a drone to capture images or sound recordings of someone on their property,” Steven explained, but if the drone is not recording, we’re still in a gray area until legislation catches up.

View the full article and video here.

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Update on California Drone Bills

A large number of drone-related measures are presently working their way through the California legislature. In light of the FAA’s recently published final rule on drone use and operation, many of these measures may be subject to further amendment—up until a deadline of August 19, 2016. But the following is brief summary of the status of all California drone-related bills as of June 22, 2016:

AB 1662 would require a drone operator to follow the same requirements as a vehicle operator following an accident that results in the injury to another. AB 1662 would require that after an accident involving a drone, a drone operator would have to immediately land the drone and provide certain identifying information to the injured individual or the owner of damaged property. This bill passed the Assembly and was referred to committee in the Senate.

AB 1680 would make it a misdemeanor for a person to use a drone to interfere with the duties of law enforcement or other “first responders.” AB 1680 simply adds drone operators to the existing requirement that no person may stop at the scene of an emergency, unless as part of their job, and interfere with emergency personnel in the performance of their duties. This bill passed the Assembly and was referred to committee in the Senate.

AB 1724 would require anyone operating a drone to place identifying information or digitally store the information on the drone and would impose a fine of up to $2,500 for failure to so identify the drone. This bill is in committee. Its first hearing was cancelled at the author’s request.

AB 1820 imposes restrictions on a law enforcement agency’s use of drones. Before any use, the law enforcement agency would need to develop and make available to the public a policy on the use of drones, and train its staff on such a policy.   Even with such a policy in place, AB 1820 would require that a law enforcement agency could only use a drone if it obtains a search warrant, absent exigent circumstances. Finally, AB 1820 would require that all images or data obtained by use of a drone be destroyed within one year, with certain exceptions. This bill passed the Assembly and was referred to committee in the Senate.

AB 2148 would require the Department of Fish and Wildlife and the Department of Parks and Recreation to develop regulations for the use of drones over the lands managed by each department in order to protect wildlife and sensitive species. This bill passed the Assembly and is currently in committee in the Senate.

AB 2320 was a twin to SB 808 before it was amended. It applies to anyone subject to a stay-away order (for example a restraining order arising out of domestic violence). AB 2320 would prohibit such a person from using a drone to fly within the prohibited distance specified in the protective order or from capturing images of the other person using a drone. The bill also permits a judge to prohibit a person required to register as a sex offender from operating a drone if the judge finds it is in the public interest to do so. Lastly, this bill contains non-binding language of legislative intent to prohibit a person from flying a drone within 250 feet of any critical infrastructure in order to gather information or photographs of the facility. This bill passed the Assembly and is in committee in the Senate.

AB 2724 would amend the Civil Code to include the requirement that drones sold in California include a copy of FAA safety regulations, as well as a notice of the requirement to register the drone with the FAA. AB 2724 would also require that any drone with gps capability also be equipped with geofencing software that would prohibit the drone from flying within 5 miles of an airport. Finally, AB 2724 would require owners of drones to buy liability insurance. This bill passed the Assembly and was referred to committee in the Senate.

SB 807 would limit the exposure to civil liability of any emergency responder for damaging a drone that interfered with the provision of emergency services.   The bill broadly applies to public and private entities, and to persons regardless of whether they are paid or volunteer.   This bill passed the Senate and the Assembly Committee on Privacy and Consumer Protection. The bill is currently in the Assembly Judiciary Committee.

SB 808 was a twin to the original draft of AB 2320. It applies to anyone subject to a stay-away order (for example a restraining order arising out of domestic violence). SB 808 would prohibit such a person from using a drone to fly within the prohibited distance specified in the protective order or from capturing images of the other person using a drone. This bill was referred to committee in the Senate.

SB 809 would prohibit the operation of a drone in the airspace over a public school (K-12) without the written permission of the school principal. This bill was referred to committee in the Senate.

SB 810 would make it a misdemeanor, punishable by up to 6 months in jail and/or $5,000, to operate a drone in a manner that interferes with efforts of firefights to control, contain, or extinguish a fire. This bill was referred to committee in the Senate.

SB 811 would make it a misdemeanor to operate a drone on or above the grounds of a state prison or a jail without prior permission from the Department of Corrections and Rehabilitation or the county sheriff. This bill was referred to committee in the Senate.

SB 868 would prohibit the operation of a drone within 500 feet of “critical infrastructure” designated by the Office of Emergency Services. It would also prohibit operation of a drone within the airspace above most state offices in Sacramento, above a state park, or above any airspace over land or water managed by the Department of Fish and Wildlife, with limited exceptions. This bill passed the Senate and was referred to committee in the Assembly.

SB 1246 would require pest control businesses and government agencies conducting pest control activities, to notify the public at least 7 days before administering pesticides by drone over a residential area. This bill is in committee in the Senate.

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FAA Finalizes Commercial Drone Rule

The Federal Aviation Administration on Tuesday finalized its long-awaited rule on commercial drones. The final rule limits operation to daylight hours below 400 feet and within the line of sight of the operator, and requires operator certification every two years. The rule places a limit on the weight of the drone plus any payload of 55 pounds. There are a host of additional restrictions, many of them waivable by the FAA under specific circumstances. The new rule will be effective this August (2016).

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Micro-Drone Report Released

On April 1, 2016, the FAA’s Micro UAS Aviation Rulemaking Committee (ARC) released its recommendations on a framework to regulate small consumer drones. The ARC was composed of a group of stakeholders, largely from the drone industry, and was tasked with developing performance and operational regulations for drones engaging in flight over people.

The FAA will use the information and guidance provided by the ARC to create “a flexible, performance-based proposed rule.” Until the issuance of such a rule, there remain many questions as to how the FAA will regulate consumer drone use. But, it appears that the ARC report points to a possible, or even probable, relaxing of earlier statements by the FAA indicating the likelihood of very restrictive regulation of even the smallest drones. This report may be the first signal that the FAA is willing to permit certain drones, in select circumstances, to operate outside the general regulations.

The report recommends dividing small consumer drones into four categories, depending on the level of risk of injury posed as a result of flight over people. For each category, the report recommends a risk threshold based either on the drone’s weight or “impact energy equivalent” and corresponding operational limitations. The ARC’s report can be read here.

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California Legislative Update

It appears that members of the California Legislature are undeterred by the Governor’s decision to veto all drone related bills but one at the end of last year. In the first few weeks of January, members of the Legislature have introduced, reintroduced, and amended a number of drone related bills. Interestingly, in what appears to be an effort to address federal preemption concerns, most of the bills include a provision specifying that the bill does not apply to drone use authorized by the FAA or does not conflict with federal law. Below is a summary of the bills that have recently been introduced.

AB 1680, expands the prohibition against a person going to or stopping at the scene of an emergency to watch emergency personnel if it impedes the work of emergency personnel to include people using or operating drones.

SB 811, appears to be an attempt to address the recent use of drones to drop contraband into prisons by prohibiting the knowing or intentional use of a drone on or over the grounds of a state prison or jail. This prohibition would not apply to prison or jail personnel acting in the scope of their employment or to any entity authorized by the FAA.

AB 1662, requires the operator of a drone that is involved in an accident resulting in injury or damage to a person or property to immediately land the drone in the nearest safe place. The operator must then either: 1) present valid ID to the injured person, 2) locate the owner of the damaged property and present valid ID if requested, or 3) leave a note with the name and address of the operator and the circumstances of the incident in a conspicuous place on the damaged property and notify the police. This requirement would not apply to law enforcement personnel acting within the scope of their employment or to anyone authorized by the FAA.

AB 14 was introduced last year but was recently amended to require owners and operators of drones that do not fall under the definition of “model aircraft” to either 1) mark the drone with the owner’s name, address, and telephone number, 2) store the same information on the drone in a digital format, or 3) mark the drone with the address of an website where the same information is listed. The markings may not modify or confuse any marks required by the FAA.

SB 809 is the reintroduction of SB 271 to prohibit the use of drones over school grounds.

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Local Drone Regulations and Possible Federal Preemption

As we have written before, State and local agencies are not waiting for the federal government to address issues of local concern regarding consumer and recreational drone use. For instance, the Golden Gate Bridge, Highway and Transportation District today posted a notice prohibiting operation of drones near the Golden Gate Bridge.

GGB Drone Notice

Such local action raises legal issues concerning preemption by the federal government—specifically the Federal Aviation Administration (FAA). On December 17, 2015, the FAA’s Office of the Chief Counsel released a Fact Sheet addressing issues of Federal preemption of state and local drone regulations.  According to the fact sheet, the FAA is broadly empowered by Congress to regulate “matters pertaining to aviation safety.” More specific to drone use, the FAA Modernization and Reform Act of 2012 directs the FAA to establish  requirements for safe operations of drones posing little or no public risk or threat to the national airspace system.  The FAA has required the registration of drones which it claims is consistent with its authority under the law.  Because the FAA’s registration is required for operating a drone in navigable airspace, “no state or local government may impose an additional registration requirement on the operation of UAS in navigable airspace without first obtaining FAA approval.”

A recent New York Times article suggests that the FAA’s preemption arguments may not deter state legislators, including Senator Gaines (R-El Dorado), from continuing efforts to regulate drones at the state level.

Notwithstanding the FAA’s position, we think that the preemptive effect of federal drone regulation will be limited, especially to the extent that local regulations are directed at issues not within the FAA’s purview, such as privacy, security (including law enforcement), and land use (including trespass and zoning). In any event, it is growing increasingly clear that states and local governments are disinclined to wait for the FAA to regulate drone use.

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AMA Encourages Members to “Hold Off Registering Model Aircraft”

On December 16, 2015 the Academy of Model Aeronautics (AMA) Executive Council approved a plan to challenge the FAA’s recently announced drone registration program.  Although the AMA was one of the groups invited to participate in crafting the registration plan, they are unhappy with the results.  As part of their challenge, they are encouraging members to refrain from registering their aircraft for the time being.  Specifically, the plan suggests “AMA members hold off on registering their model aircraft with the FAA until advised by the AMA or until February 19, the FAA’s legal deadline for registering existing model aircraft.”

At the core of their dispute the AMA questions whether the FAA has the legal authority to require registration or otherwise regulate model aircraft.  The FAA took the position that model aircraft are ‘aircraft’ it has statutory authority to regulate, and thus require registration of UAVs under the Section 336 of the FAA Modernization and Reform Act of 2012.  However the AMA contends such authority is limited by the same act, otherwise known as the “Special Rule for Model Aircraft.”  Shortly after the FAA issued its interpretation of Section 336 and announced its intent to regulate model aircraft, the AMA filed a petition with the U.S. Court of Appeals for the District of Columbia which is pending.  In its petition, the AMA is specifically challenging the FAA order “Interpretation of the Special Rule for Model Aircraft.” 79 Fed.Reg. 36,172 (June 25, 2014) and seeking a court order to rescind.  The core of the petition is whether or not “model aircraft,” including small UAVs or drones, are “aircraft” subject to FAA jurisdiction to regulate.

In its zeal to invoke a plan to register UAVs in time for the 2015 holiday season, the registration rules leave many unanswered questions.  At a minimum, the registration requirement may also be challenged as an overreach by the FAA because the agency failed to follow public notice and comment procedures ordinarily required before final adoption of federal regulations.  If model aircraft are determined to be ‘aircraft’ subject to registration requirements, can the same be said for model or hobby rockets or unmanned experimental balloons?  Will hobbyists in those areas also find themselves subject to registration?

To be clear, the AMA does not oppose registration of drones per se, but does object to FAA registration that is duplicative of association rules.  The AMA also objects to the broad definition promulgated by the FAA as to what constitutes a model aircraft subject to regulation.

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Is Your Drone Naughty or Nice? The FAA Begins Drone Registry Requirement on December 21

The FAA today announced the launch of its consumer drone registry program. Here is a FAQ the FAA has posted about the program. The program requires registration of all drones greater than .5 pounds, whether flown for commercial or recreational purposes. All new drone owners must register beginning on December 21, 2015—people who already own a drone have until February 20, 2016 to register. A $5 registration fee is waived for those who register before January 20, 2016. A preliminary review of the program indicates it to be quite expansive. Upon registration, all drone owners must attach a unique registration number to the drone and carry a registration certificate—in either hard or electronic form—when operating a drone.

The new registration requirements raise a number of legal questions. These range from the general, including whether the FAA even has the authority to require such mandatory registration at all, or if it may do so without a more formal public comment process, to the specific, including whether and how non-citizens will register—under the present guidelines, neither are subject to the registration requirement as the FAA only claims authority to register drones belonging to US citizens and permanent residents.

Failing to register as required can result in civil penalties of up to $27,500. However, Michael Whitaker, deputy FAA administrator has stated that “the goal is not to be punitive, but to get people into compliance with the regulations.”

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Steve Miller Quoted in Popular Science

Check out quotes from Steve Miller’s interview with Popular Science magazine about the pending FAA drone registry.

Model Airplane Hobbyists Skeptical of Proposed Drone Registry

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The FAA Rushes Recommendations Ahead of Christmas Shopping Season

On November 21, an FAA task force made up of representatives of manufacturers, pilots, government officials, and other technologists released its recommendations for how to monitor recreational use of drones—as distinguished from commercial users. The FAA had given the task force only four weeks to prepare its recommendations, hoping to act on them in time to apply to what is anticipated to be a huge Christmas drone-shopping season.

The recommendations include a registration process for all recreational users, with the resulting creation of a national database of drones. Such a database could be key in efforts to link a drone to its operator. Enforcing drone restrictions now is very difficult as it can be impossible to find the operator when an anonymous drone is mis-used. The registration requirements would be augmented by a requirement that each drone display its registration number. In a controversial move objected to by some toy manufacturers, the task force recommended that the registration rule apply to any drone weighing over 250 grams (a little more than half a pound). This would include most drones used by hobbyists. The task force did not recommend measures suggested by privacy advocates that all drones broadcast registration information by way of a transponder

Next steps are for the FAA to consider and adopt/modify/reject the recommendations. A key decision for the FAA will be how to enforce the registration requirement. The task force recommended a “reasonable and proportionate penalty schedule” less than the $25,000 maximum that presently applies to aircraft registration violations. In order for the registration requirement to have any teeth, a sizable penalty will be necessary to achieve any kind of deterrent effect.

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FAA Names Members of UAS Registration Task Force and Seeks Public Input on Proposed UAS Registration Framework

The FAA announced the members of its UAS Registration Task Force. The 26 member task force will be chaired by the Director of the FAA’s UAS Integration Office, Earl Lawrence and GoogleX’s, Dave Vos. Members include representatives from industry, law enforcement organizations, consumer groups, aviation officials’ organizations, and pilots’ associations.

The FAA recently announced the formation of the task force to develop recommendations for expanding the registration of drones as part of an effort to ensure that small drones are used safely. In a document titled “Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS,” the FAA noted that pilots have reported twice as many drone sightings in this year as compared to 2014. Pilots report drones as high as 10,000 feet and as close as half a mile from runways. The FAA also observed that drone use near wildfires has interfered with the work of emergency responders.

The FAA anticipates 1 million new drones will be purchased this holiday season and it is concerned that instances of illegal and unsafe drone use will become more and more frequent. While the FAA has exercised discretion related to the registration of drones in the past, it is considering changing course by requiring greater compliance from drone operators with federal law prohibiting the operation of unregistered aircraft.

The taskforce is charged with forming recommendations related to drone registration. The taskforce will also consider whether the FAA should continue to exclude certain drones from registration based on weight and performance limitations.

In keeping with the creation of the rapid-response task force to develop a process for registration of UAS, the FAA asked for public input regarding relevant rulemaking.  The FAA would like all input by November 6, 2015.  Interested persons may comment online or via traditional methods.

In its request, the FAA identified 10 questions for which it seeks public comment:

  1. What methods are available for identifying individual products? Does every UAS sold have an individual serial number? Is there another method for identifying individual products sold without serial numbers or those built from kits?
  2. At what point should registration occur (e.g. point-of-sale or prior-to-operation)? How should transfers of ownership be addressed in registration?
  3. If registration occurs at point-of-sale, who should be responsible for submission of the data? What burdens would be placed on vendors of UAS if DOT required registration to occur at point-of-sale? What are the advantages of a point-of-sale approach relative to a prior-to-operation approach?
  4. Consistent with past practice of discretion, should certain UAS be excluded from registration based on performance capabilities or other characteristics that could be associated with safety risk, such as weight, speed, altitude operating limitations, duration of flight? If so, please submit information or data to help support the suggestions, and whether any other criteria should be considered.
  5. How should a registration process be designed to minimize burdens and best protect innovation and encourage growth in the UAS industry?
  6. Should the registration be electronic or web-based? Are there existing tools that could support an electronic registration process?
  7. What type of information should be collected during the registration process to positively identify the aircraft owner and aircraft?
  8. How should the registration data be stored? Who should have access to the registration data? How should the data be used?
  9. Should a registration fee be collected and if so, how will the registration fee be collected if registration occurs at point-of-sale? Are there payment services that can be leveraged to assist (e.g. PayPal)?
  10. Are there additional means beyond aircraft registration to encourage accountability and responsible use of UAS?

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Steve Miller on KPCC to Discuss New Federal Drone Regulations

Join our own Steve Miller as he discusses proposed requirements for hobbyists to register their drones.

“You’re going to need to register that drone: Federal government announces new regulations”

(Listen online, starting 11:15 AM Pacific. Or listen to the recording.)

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FAA Creates New Task Force to Study Non-Commercial Drone Registration

The Federal Aviation Administration announced today that it was creating a task force to develop recommendations for a registration process for all consumer drones—even those flown by hobbyists and therefore not subject to proposed rules governing commercial use of drones.  This action is recognition that the distinction between commercial and non-commercial use may not make a difference in achieving safety and security goals.   The task force is expected to provide a report by Thanksgiving.

It is not at all clear how the registration process will work.  Will there be exemptions for small or lightweight drones, or drones that are incapable of flying above a certain height?  Will the registration requirements apply retroactively?  What about drones that are not purchased fully functional, but are assembled by hobbyists from separate parts?  Finally, absent legislative or regulatory action, will the FAA actually be able to implement any recommendations proposed by the task force?

More fundamentally, requiring hobbyists to  register a drone may not address operational restrictions that continue to emphasize the difference between commercial and hobbyist use.   Non-commercial use is still going to be largely free from restrictions such as geographical restrictions, speed or height restrictions, and other regulations that address potentially unsafe operation.

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Steve Miller on KPCC to Discuss Recent Drone Law in California

Join our own Steve Miller as he discusses Governor Jerry Brown’s signing of AB 856 on Tuesday, and what it means that he did not sign other proposed legislation into law.

“Analyzing Governor Brown’s choice to sign one drone bill, not others”

(Listen online, starting 11:50 AM Pacific. Or listen to the recording.)

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California City Bans Drones

The City of Poway, in San Diego County, has passed an urgency ordinance that effectively bans the use of drones in any open space or rural residential area. The stated purpose of the ordinance is to prevent interference with firefighting efforts, though the measure is very broad. The measure was enacted pursuant to Government Code Section 65858, which permits a city to enact an urgency ordinance to “protect the public safety, health, and welfare.” The ordinance will remain in effect only until October 15, 2015, although the City Council can extend the ordinance twice, after public notice and hearing, for almost two additional years.

In order to avoid any issues of federal preemption, the ordinance does not restrict the actual flight of drones. Rather, it prohibits launching, operating (i.e. controlling a drone during its flight), or landing following flight. The City Attorney’s opinion in the staff report accompanying the ordinance concluded that focusing on the use of property within the city by way of implementing zoning regulations, rather than on flight itself, the City would be acting within its constitutional police powers. The ordinance therefore emphasizes that “without stable, well-planned neighborhoods, and urban planning, sections of the City can quickly deteriorate, with tragic consequences to social environmental and economic values.”

The ordinance contains an exemption for drones owned or operated by local, state, or federal law enforcement or emergency response personnel while acting in their official capacities.

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Governor Vetoes SB 142

SB 142, which would have prohibited flying a drone over private property, has been vetoed by Governor Brown. In his veto message the governor wrote “Drone technology certainly raises novel issues that merit careful examination… This bill, however, while well-intentioned, could expose the novel hobbyist and the FAA-approved commercial user alike to burdensome litigation.” His veto came after intense opposition from the media industry, focused in part on uncertainties created by the measure’s use of a 350 foot ceiling for prohibited flight. There are still other drone bills pending so stay tuned for more legislative action in the very near future.

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