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Cool and Creepy – The Competing Drivers for the Development of Drone Law

Drone Laws Blog by Antonelli Law

Cool and Creepy – The Competing Drivers for the Development of Drone Law  - Mark Del Bianco

Two weeks ago I was the designated lawyer on a “Putting Wings on the Internet of Things” panel on UAS at MobilityLIVE in Atlanta. My assigned task was to predict how the laws and regulations governing drones would develop in the next 2-3 years. The morning of the talk, I had a set of predictions but no connecting theme.

The paneI that preceded ours was on location-based marketing (think in-store beacons pinging your smartphone). One of the panelists mentioned that for consumers there was a fine line in LBM between cool and creepy. A light bulb went on for me. Cool and creepy are the yin and yang of commercial drones. The development of drone law over the next decade will be driven by public/legislative perceptions of the cool/creepy factor, not by the technological developments in the industry.

It turns out my predictions for the panel talk fit the cool/creepy dichotomy well. Unfortunately, creepy is likely to be the winner in the short term. I’m using creepy not just in the “ugh” factor sense (think peeping toms), but as shorthand for the various types of fear induced in many people by the idea of flying cameras everywhere. “Cool” refers to all the potentially beneficial uses of drones – precision ag, utility inspections, deliveries, avalanche prevention – that can be unleashed by a well-designed regulatory framework.

My first prediction was that the FAA’s half-baked drone registration idea will be implemented but pointless. Referring to it as a plan dignifies it too much. Anyone who’s been involved with drafting federal policies and regulations knows that the FAA’s goal of implementing something, anything, by Christmas goal is a recipe for failure. There are so many obvious questions (leaving aside the jurisdictional issues), such as who will perform the registration function, will it be mandatory, will it apply to all drones, and will it apply retroactively? In the end, the FAA will at best have only a part of the universe of hobbyist drones registered, and this year’s registration plan may have to be scrapped and reworked. But when questioned by a Congressional committee, the agency will have the defense that at least it tried to do something.

The second prediction was that the next few years will see a rapid proliferation of state and local drone laws. The majority, but not all, will be anti-drone laws. Such laws will continue to be proposed (but not always enacted) by legislators driven largely by privacy fears, not by the potential danger of injuries from drone accidents.   Many of these laws will infringe Constitutional protections, but there will be few court challenges initially. Why is that? It’s because in the first few years, those most affected by restrictive local laws will be hobbyists and small businesses, who generally don’t have the financial resources to fund litigation. Legal challenges will eventually be brought as larger drones come into use and the operations of Fortune 1000 companies – think utilities, engineering firms and large services companies – are affected. They will have the incentives and the necessary deep pockets to fund litigation. But challenging the numerous state and local laws in effect by that time may be a piecemeal process akin to legal whack-a-mole.

Where does “cool” come in? Only at the federal level. Most of the potential “cool” use cases for drones – including the delivery operations that have garnered so many headlines – require specific federal authorization. Unfortunately, Congress and the FAA move much more slowly than state and local governments. That’s why my third prediction was that there will be neither significant changes in federal law nor amended regulations for smaller UAS (under 55 lbs.) in the next 2-3 years (and perhaps longer). (It is a given that the pending small UAS regulations will be finalized during that time, but I don’t count that as a change.)

I know this prediction is contrary to the hopes and expectations of many in the industry. But I think it’s realistic. Here’s why. The starting point for my analysis is that Congress is aware that the technology is changing too fast for it to enact a drone-specific law at this point, and in any event it would rather leave the task of drone-specific regulation to the FAA. Congressional action will only occur in the near term if (1) there is a drone accident with significant loss of life, (2) the FAA drags its feet and fails to finalize the small UAS regulations until 2017 or 2018, or (3) there is a widespread perception that the U.S. is losing its competitive advantage (and more importantly, manufacturing and services jobs), to other countries with more industry-friendly UAS regulations.

So any changes in the next 2-3 years will have to come from the FAA, which is notoriously slow to embrace new aviation technology. To begin with, the FAA will be hard-pressed to get the proposed small UAS regulations finalized by the end of 2016, four years after Congress passed the statute requiring the FAA to issue regulations. Once they are finalized, the FAA needs to draft both regulations for larger UAS and amended regulations that will enable small UAS to be used for many more useful commercial operations. That means regulations on autonomous operation and beyond visual line of sight flight (BVLOS). Since the necessary testing of BVLOS and autonomous systems is just starting now, I don’t see how the FAA can get a proposal out on either issue until 2017 at the earliest, and it will probably be later than that. Does the FAA have the incentive or the legal bandwidth to do both at the same time? That’s a good question.

About Attorney Mark Del Bianco 

Attorney Mark Del Bianco is Special Counsel to Antonelli Law’s DSC_2812Drone/UAS Practice Group. Mark has more than three decades of experience representing clients in federal administrative rulemaking, enforcement proceedings, and court reviews at the DOJ, ITC, FCC, FDA, CPSC, and NHTSA. He has litigation experience ranging from state trial courts to case briefs in the United States Supreme Court, and in recent years has litigated the constitutionality of state laws at the intersection of technology and privacy. He also provides transactional and regulatory assistance to a wide array of clients, including fiber networks, satellite service providers, business owners, application developers and cloud services providers.

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Antonelli Law Surpasses 50 UAS Clients

Drone Laws Blog by Antonelli Law

We are incredibly grateful and proud to have achieved a list of quality clients doing interesting UAS work, which has surpassed 50 in number.

Thank you to our valued UAS clients. We look forward to continuing to grow our knowledge and business with you.

Above It All Aerial Solutions LLC
Aerial Inspection Resources
Aerial Inventory LLC
AeriFocus LLC
Angle of Attack
Arrow Aerial Precision LLC
Burns & McDonnell Engineering Company, Inc.
Certified Productions
CyberCAPTURE LLC
Digital Magic productions
Drone Experts
Ecamsecure
Frontier Geospatial
Fuscoe Engineering
Helios Imaging
Hover Effect LLC
iCam Copters
Indiana Aerial Solutions
Kovar & Associates
LA Drones LLC
LCAnderson.com LLC
LCP 360
Leading Edge Technologies
Nixon Engineering Solutions
North Georgia Drones
NWB Environmental Services
Omnitrax
Outrage Media
Owlcam
PIKA International
Richter Studios
Robo Aerial
Seiclone Surveys
Sky Eye Solutions
SkyCamUSA LLC
SkyFly Cinema
Skyway Recon
Snowy Owl Productions LLC
STV Inc
Tough Stump Technologies LLC
Tour Factory
TourFPV
Tower Inspection
UA TacSolutions LLC
Volo Pervidi LLC
Vortex UAS LLC

*Partial Client List Due to Confidentiality

 

If your company would like assistance filing a Section 333 petition or special airspace COA to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.

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Antonelli Law Utility Client Sky Eye Solutions Receives Section 333 Exemption Approval

Drone Laws Blog by Antonelli Law

Antonelli Law UAS client Sky Eye Solutions LLC received approval from the FAA on October 27th to operate the Instant Eye MK-2 GEN3 for aerial utility and infrastructure inspections and precision agriculture. The FAA approved the petition in 122 days.

Many have observed the FAA docket and Section 333 exemption process became log-jammed during the summer. This approval is the second of 20 Antonelli Law Section 333 petitions to finally break out of that log-jam.

A copy of the FAA Grant of Exemption under Section 333 can be viewed here: Sky Eye Solutions LLC – 13365

If your company would like assistance filing its own Section 333 petition to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.

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Antonelli Law Cinematography Client Hover Effect Receives Section 333 Exemption Approval

Drone Laws Blog by Antonelli Law

Antonelli Law UAS client Hover Effect received Section 333 exemption approval from the FAA on October 27th to operate the DJI Phantom 1, DJI Spreading Wings S800, Freefly Cinestar 8, and Freefly Cinestar 8 HL for closed-set motion picture and television production, and real estate. The FAA approved the petition in 122 days.

Many have observed the FAA docket and Section 333 exemption process became log-jammed during the summer. This approval is the first of 20 Antonelli Law Section 333 petitions to finally break out of that log-jam.

A copy of the FAA Grant of Exemption under Section 333 can be viewed here:Hover Effect LLC – 13366

If your company would like assistance filing its own Section 333 petition to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.

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FAA Releases New UAS Policy Document

Drone Laws Blog by Antonelli Law

On October 27 2015 the FAA released a new UAS policy document:

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logoFAA

We will be analyzing this released document and its likely effects and commenting soon.

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