Commercial Drones Grounded By a Lack of Regulation

Commercial unmanned aerial systems (UASs), better known as drones, are currently being used to monitor illegal fishing activities, patrol oil and gas pipelines, monitor volcanic clouds, and conduct crop dusting, in a diverse range of countries, including Libya, Saudi Arabia, Russia, Kuwait, Nigeria, Nepal, Brazil, and Japan, among many others. Furthermore, in Australia, Flirtey plans to begin delivering books via drones in 2014, and in the United Kingdom, real estate agents use drones to shoot videos of pricey properties.

One glaring omission from that list of countries is the United States which, despite a long history of using drones on the battlefield, has moved very slowly in drawing up any regulations for their commercial usage. Currently, the Federal Aviation Administration (FAA) restricts all commercial unmanned aircraft flight in U.S. airspace, unless specific permission is granted by the agency.

"We think there’s tremendous value to be delivered to many different companies and people who will use unmanned aircraft systems," says Steve Gitlin, a vice president with AeroVironment, the manufacturer of the Puma AE, one of only two UASs (along with Insitu’s ScanEagle X200 drone) currently approved for commercial operation in the U.S. While these drones operate in unpopulated areas (in the Beaufort Sea near the Arctic Circle and off the coast of Alaska, respectively), Gitlin believes there are a number of commercial opportunities for drones, including search and rescue operations, oil and gas monitoring, agricultural tasks, and eventually package delivery.

The sole exception to the ban on unmanned aircraft in the U.S. is for hobbyists operating private aircraft for non-commercial purposes which, up until recently, were generally radio-controlled model aircraft that required visual line-of-sight contact between the operator and the plane. Even these non-regulated flights are beginning to generate additional scrutiny by authorities, despite no formal written regulations having been enacted by the FAA.

In March, aerial drone enthusiast Brian Wilson piloted his four-pound DJI Phantom 2 drone and shot about 30 minutes of video over the scene of a horrific building collapse in the Harlem section of New York City, until he was asked by police not to fly the drone in the area anymore, and he complied.

Recent federal efforts to regulate the use of commercial drones were dealt a setback in March when an administrative law judge threw out a $10,000 fine imposed by the FAA on Raphael Pirker, who in 2011 flew a $130 drone and camera around the University of Virginia, shooting video for an advertisement about the University of Virginia Medical Center.

Brendan Schulman, special counsel and head of the Unmanned Aircraft Systems group at Kramer Levin Naftalis & Frankel LLP, the law firm that handled Pirker’s case, says the decision to throw out the case reinforced the notion "there’s no applicable regulation to drone operation or unmanned aircraft." However, Schulman notes, the FAA has filed an appeal, and "we can expect in the near future to see proposals from the FAA concerning how commercial drones could be operated in the U.S."

The main reason for concern, according to the FAA and industry players, is that U.S. airspace is extremely crowded, and a plan for the safe operation of these devices will be required to allow the market to develop to its full potential.

"Our fear is that if more and more people start flying without regulations, it’s not safe," says Ben Gielow, counsel for the Association for Unmanned Vehicle Systems International, a trade group with more than 7,500 members. "When there inevitably is an accident where someone gets hurt and there are no safety regulations, that will reflect very negatively on not only the industry, but on the FAA as the regulator."

The FAA has promised to deliver a draft of regulations by November that likely will cover the acceptable frequency spectrum allotted for controlling these devices, an altitude ceiling of about 400 feet (manned aircraft are supposed to fly at or above 500 feet), and geographic restrictions, as well as a provision that limits their usage to daytime, line-of-sight operation. Gielow says it is likely the FAA will include some additional restrictions covering drone airworthiness, and operator qualification and fitness.

Schulman, however, contends that despite the projected increasing use of drones by hobbyists and commercial operators, there is not a clear rationale for more regulation, given that injuries caused by model aircraft are simply handled via each state’s tort systems. What’s more, Schulman says enacting new regulations requires an enforcement mechanism that would likely fall on the FAA. "That requires a budget, and I’m not sure that the FAA has the funding to police model aircraft injuries," Schulman says.

Keith Kirkpatrick is principal of 4K Research & Consulting, LLC, based in Lynbrook, NY.