1. The Operation and Regulation of Drones – What You Need to Know!
Brandon Dittman, Esq.
Associate Attorney, Kissinger & Fellman, P.C.

2. My Perspective on sUAS or “Drones”
Flying Model Aircraft since 1999
Admitted to Purdue 2007, College of Technology - Professional Flight Program
2014 Graduate University of Colorado Law School
( ) Denver City Attorney’s Office
(2015 – Present) Kissinger & Fellman, P.C.
(2018 – Present) Remote Pilot Certificate and PPL Flight Training

3. Syllabus How did we get here? – Rapid Advances in Technology
The Basic Legal Framework
Hobby/Recreational Drones
Commercial Drones – Part 107
Public Drones
Local and State Regulation
Legal and Technical Challenges and Opportunities for Innovation

4. UAS Terminology (the alphabet soup)
Drone – Common name for a UAS
FPV – First Person View
UAS – Unmanned Aircraft System
LAANC - Low Altitude Authorization and Notification Capability
ANPRM – Advanced notice of proposed rulemaking
Part 107 – Federal sUAS Regulations for Commercial UAS
NPRM – Notice of proposed rulemaking
Remote Pilot Certificate – New sUAS RPIC license
COA – Certificate of Authorization, applies for both Public Agencies or Commercial UAS flights
RPIC – Remote pilot in command
sUAS – Small UAS (under 55 lbs)
CFR – Code of Federal Regulation
VO – Visual observer
FAA – Federal Aviation Administration
UTM – Unmanned Traffic Management
FAR- Federal Aviation Regulations

5. DISCLAIMER
This presentation should not be used for specific legal advice. UAS law is simply too complex and evolving to quickly to fully and 100% accurately summarize during the course of this presentation. Always consult an attorney licensed in your jurisdiction for specific answers to your specific legal questions! My perspective is that of an attorney primarily working for state and local governments. Your perspective may differ as an operator, manned aviator, etc.
Kissinger & Fellman, P.C.

6. How did we get Here?
Rapid Technological Advances in UAS Technology

7. 1999 versus 2019 My First Airplane 1999 Megatech Airstrike
Flight Software: Custom software with fully autonomous capability run by 20 computing cores.
GPS: GPS and GLONASS
Camera: 12MP 4K stabilized
Stabilization: gyroscope, ultrasonic rangefinder, 5 cameras
Flight Software: 10 year old me
GPS: LOL
Camera: Nope
Stabilization: Unstable, tendency to dive towards ground for no reason
Transmitter: 72 Mhz, subject to inference, range OK, uses “crystals”
Motor: Brushless, x4, more efficient, more thrust
Motor: Brushed, x1, slow, inefficent
Battery: LiPO, 27 min flight time, light, high discharge rate
Battery: Hard cell NiCd, 5 min flight time, heavy
Transmitter: 5.8/2.4 Ghz, FPV, 4.3 mi range, does not use crystals
My First Airplane 1999 Megatech Airstrike
$ in ($ adj. inflation)
DJI Mavic Pro
Aprox. $ Dollars

8. The Good: UAS can fly faster, closer, and safer
34 individuals lost their lives due to tower-related inspection incidents between 2013 and Drones help eliminate that risk. Occupational Safety and Health Administration:
Drones are a “Game Changer” for agriculture and can assist in increased remote sensing and precision agriculture capabilities and are safer, faster, and cheaper than manned aviation. See Why Precision Agriculture Will Change How Food Is Produced
Drones provide situational awareness to public safety professionals and first responders where no capabilities previously existed or were cost or safety prohibitive. See PUBLIC SAFETY PROFESSIONALS NEED DRONES
“ The applications for UAS are limited only by the imagination”- David McBride, Director, Armstrong Flight Research Center, NASA

9. The Bad: UAS are easy to fly, cheap, and everywhere
“ The misuse of UAS is limited only by the imagination”- Brandon Dittman, Esq. (yesterday)

10. The Basic Legal Framework
FAA Regulation of Drone Operations

11. The FAA finds its Test Case: UAS are Aircraft
Huerta vs. Pirker (National Transportation Safety Board) 2014
Raphel Pirker shoots video for the University of Virginia Medical School
Drone racer, member of Team BlackSheep
Does a bunch of reckless stuff
FAA issues fine for $10,000 based on a violation of 14 C.F.R. § (a) – reckless operation of an aircraft
Pirker argues his flight was a “model aircraft” – NTSB ALJ Agrees
FAA Appeals to NTSB
NSTB overturns the ALJ decision and unequivocally rules UAS are “aircraft” subject to FAA Regulation. (NTSB Order No. EA- 5730, November 18, 2014)

12. FAA Regulation: Off to the Races
FAA implements Section 333 exemption process (October 2014)
Allowed commercial UAS operations prohibited by federal law at the time
Commercial UAS Regulation Mandatory (November 2014)
FAA Promulgates Part 107 Rules (August 2015)
“Bread and Butter” of UAS Regulation
Recreational UAS Registration Mandatory (December 2015)
Legal hiccup in 2017
Kissinger & Fellman, P.C.

13. Basic Regulatory Framework: Based on Intent of Flight
UAS are regulated based on the intent of the flight they are performing .
Hobbyists/Recreational users fly “model aircraft” and are lightly regulated.
“Commercial” flights are regulated under Part 107 or a Section 333 exemption.
“Government” flights regulated under a Public Certificate of Authorization(“COA”) (or other FAA authorization)
Regulatory scheme not based the aircraft but the intent of the flight at the time of flight.

14. Hobby/Recreational Aircraft
Light touch regulation but becoming increasingly regulated

15. Light Touch: but changing…
“Aircraft is flown strictly for recreational purposes” in NAS – FAR Section 349
If you are flying for anything of value you are not a hobby UAS
Type of Aircraft doesn’t matter
Quadcopters
Helicopters
Airplanes, Gliders
All Recreational
Academy of Model Aeronautics (AMA) big player in recreational UAS
Formerly FAA deferred a lot of recreational UAS safety requirements to AMA
AMA safety policies still good reference material
Formerly voluntary FAA Compliance (FAR 336 or “the Model Rule”)

16. FAA Reauthorization Act of 2018 : …BIG CHANGES, especially for recreational UAS
Must follow either Part 107 or “Exception for Limited Recreational Operations of Unmanned Aircraft” (84 FR 22552; AC 91-57B)
Must comply with safety guidelines of a “community-based organization” i.e. AMA)
Must Register with FAA
Number of airspace restrictions (similar to Part 107)
Flights in Class G (uncontrolled airspace) – stay under 400 feet
Flights in controlled airspace prohibited with two exceptions
Fixed site with FAA letter of agreement
Approval through the LAANC (not yet operational)
All flights must be within line of sight (of PIC or VO)
New Aeronautical Knowledge Test Required…Stay tuned
Gives local law enforcement limited authority over recreational flyers (84 FR 22552)
Includes Educational UAS – FAR Section 350
FAA to conduct future rulemaking
The FAA rulemaking implementing FAA Reauthorization Act says local law enforcement can enforce requirement to comply with community safety guidelines and registration and marking requirements
Kissinger & Fellman, P.C.

17. May 17 FAA began enforcing FAA Reauthorization Act Requirements including airspace restrictions. Hundreds of fixed AMA sites were shut down. many including suhkaha field already already had the required FAA authroizations but we shut down incorrectly anyway. Most issues were resolved in a few days
Kissinger & Fellman, P.C.

18. FAA Registration and Marking: Required for all sUAS
UAS greater than .55lbs (250 Grams) Must be registered with FAA -$5 fee, renewal required every 3 year
Weight includes all batteries, payloads, sensors, etc.
Requirement struck down in Taylor v. Huerta (DC Cir. 2017)
Congress overturns decision in FAA Reauthorization Act of 2017
For recreational one registration covers all aircraft, for commercial registration per aircraft.
February 25, 2019 FAA Rule (84 FR 3669) Requires external marking of registration number “N” number
Could be internally placed previously
Kissinger & Fellman, P.C.

19. E-Flite Timber: 1400g or aprox 3lbs
Just How Much is .55lbs or 250g?
E-Flite UMX Waco: 294g .7lbs
NewBee Drone: 22g .05lbs
E-Flite Timber: 1400g or aprox 3lbs

20. FAR - Part 107
The “Bread and Butter” of Commercial UAS Regulation

21. Part 107: The Basics
On June 21, 2016 the FAA finalized the first operational rules for commercial use of UAS Part 107
Regulates small UAS (sUAS)
under 55lbs with all equipment
Requires commercial operators to become certified as Remote Pilots in Command (RPIC)
Requires an Airman Knowledge Test
Numerous restrictions on use.

22. Part 107: Remote Pilot in Command Test Areas
Regulations pertaining to sUAS rating privileges, limitations, and flight operation;
Radio communication procedures;
Determining performance of sUAS;
Airspace classification and operating requirements flight restrictions on sUAS operations;
Physiological effects of drugs and alcohol;
Aeronautical decision- making (ADM) and judgment;
Weather;
sUAS loading and performance;
Airport Operations; and
Maintenance and preflight inspection procedures.
Emergency procedures;
Crew Resource Management (CRM);
No Flight Test!!!

23. Operational Limitations Under 107: Not ready for Amazon Drone Delivery
No fully autonomous operations (no pilot)
Maximum altitude 400 above ground level (AGL)
Requires pilot self-certify he or she is in good physical and mental health
Unless within 400 feet of a structure
One UAS at a time, no “swarming” (can be waived)
No careless or reckless operations
Operations over people (can be waived)
No night operations (can be waived)
No operations from a moving vehicle while carrying the property of another
Numerous airspace restrictions
Rules clarified in FAA Advisory Circular
No Beyond Visual Line of Sight (BVLOS)

24. Airspace Restrictions: Integrating UAS into the NAS
Need ATC or FAA authorization to fly in controlled airspace (B, C, D, E)

25. Enforcement: The FAA is Watching
FAA will take certificate actions against unsafe UAS Operators.
The FAA may assess civil penalties up to $27,500. Criminal penalties include fines of up to $250,000 and/or imprisonment for up to three years for each incident.
Huerta v. SkyPan International - $1.9 Million fine for 60 flights in NYC and Chicago
49 Legal enforcement proceeding by FAA June 2007 – May 2018; 420 compliance actions; 49 administrative

26. Public UAS
Use of UAS by Public Entities

27. Local Government Interest in UAS Technology
Police and fire
Disaster Response
Property management
GIS
Resource Management
Code Enforcement
Video Programming
Utilities

28. Public UAS Regulation Public Certificate of Authorization (COA)
Whether an operation may be considered public is determined on a flight-by-flight basis, under the terms of the statute 49 U.S.C and 49 U.S.C and considers aircraft ownership, operator, the purpose of the flight and the persons on board the aircraft
Flight must be for a core government function 49 U.S.C. § 40125
Public Safety
Health and Welfare
Aeronautical Research
Public Operators can, and often do, operate under Part 107
Some flights do not advance a core government function
Operationally, 107 flights can be easier to manage
FAA Expected to do a Public UAS rulemaking this year.

29. State and Local Regulation
Filling the Gaps: for Better or Worse.

30. UAS Impacts the Local Airspace
Remember UAS are everywhere!
6 times as many UAS in the NAS than manned aircraft at any time.
The FAA is watching but, isn’t everywhere
Most legal violations go unreported and left to local authorities
What can state and local governments do?
It is the FAA’s responsibility to maintain a safe air transportation system, including an airspace “free from inconsistent state and local restrictions[.]” Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007)
Blade of grass to outer space theory – FAA controls everything in the air.
Conflict of desire for local control versus need for uniform system.

31. Singer v. City of Newton, No. 17-100071-WGY, 2017 WL 4176477 (D. Mass
Singer v. City of Newton, No WGY, 2017 WL (D. Mass. Sept. 21, 2017)
First Federal case on municipal drone legislation.
UAS Hobbyist with RPIC certificate versus City Council
Local UAS regulation subject to “conflict preemption.”
Local regulations are preempted to the effect they “obstruct federal objectives and directly conflict with federal regulations.”
Preempted regulations:
Local registration requirements applicable to owners of all pilotless aircraft;
A ban on the use of a pilotless aircraft below an altitude of 400 feet over private property without the express permission of the owner of the private property;
A ban on the use of a pilotless aircraft “beyond the visual line of sight of the Operator”; and
A ban on the use of a pilotless aircraft over Newton city property without prior permission.

32. States are Active Too!
270 proposed state level UAS laws in 2019 (and counting!) – AMA March Regulatory Report
Primarily focus on privacy or first responder safety
Some much more extensive and are likely preempted by federal law
Similar levels of proposed and enacted legislation since 2014.

33. Local Regulation: What’s Permissible?
State and municipalities have struggled to craft laws which legally regulate UAS
Restrictions on flight operations inconsistent with FAA regulations - generally preempted
Limitations on operating UAS within city limits, within airspace above a city, or within certain distances from landmarks
Required equipment or training for UAS operators within jurisdiction related to safety
Traditional state and local police power – generally not preempted
Land use, planning and zoning, health, safety, advertising, general welfare.
Hunting with UAS, take-off and landing locations, privacy

34. Local Law Enforcement and FAA
FAA finally recognizing local law enforcement role
Encourages local prosecution where the action taken would be a crime with or without a drone
If you take the drone out of the incident you can apply already existing law to infractions committed (for example, reckless endangerment, voyeurism, or harassment)?
2018 FAA Reauthorization
Allows local law enforcement to ask for airman certificate and whether the UAS is operating under any safety standards (i.e. AMA)

35. Other Important Local Issues: Could do a presentation just on these topics
4th Amendment Considerations (Search and Seizure)
Lot of uncertainty here generally, probably the next big drone case.
Privacy
NTIA has released voluntary guidance on UAS privacy, transparency, and accountability
practices_for_uas_privacy_transparency_and_accountability.pdf
Very little legal doctrine here
Trespass, Nuisance, Stalking, Assault, Peeping Tom, etc. laws are all enforceable against UAS.
Boggs v. Merideth (2017 WL (W.D. Ky. 2017))– “Drone Killer” “stand my ground” case.
Federal court punts on key federal issues and says it’s a state law issue. Holds traditional civil and criminal state laws (conversion, trespass, etc.) apply to UAS.

36. Legal and Technical Challenges
Opportunities for Innovation

37. UAS Integration is Difficult: But therein lies opportunities!
Ms. Diana Cooper, Senior Vice President, Policy & Strategy, PrecisionHawk, Inc - “Full UAS integration in all airspace by 2050”
That’s 31 years! In my opinion we need to move faster.
More UAS enter the NAS every year
Rep Rick Larsen (D-WA) - 3 Million hobby drones by ,00 commercial drones by 2020
Economic “opportunity cost” of delaying UAS integration
Alliance for Drone Innovation - $13.6 billion per year of economic benefits in the first three years of integration, and will only grow, cumulating to more than $82.1 billion and more than 103,000 jobs by 2025.

38. Challenge 1: Collision Avoidance
Problem:
FAA receives approx. 100 manned pilot reports of UAS sightings each month
Disclaimer: reports rely on pilot reports and don’t always indicate “near- miss” or unsafe UAS operations
London’s Gatwick airport drone closure in Dec cost airlines $64.5 million, likely similar numbers for Heathrow a month later.
UAS do not reliably show on ATC radar if at all
Do not have transponders
To small
Manned aviation now required to have Automatic Dependent Surveillance – Broadcast (ADS-B) in most airspace – but no similar tech for UAS
Non-ATC dependent, GPS based situational awareness tool
DJI has announced ADS-B tech for UAS coming
FAA is solely relying on UAS education and airspace restrictions to reduce risk
Most UAS users are not RPIC holders
Most airspace where people live is controlled

40. Challenge 1: Potential Solutions
“Detect and Avoid Technologies”
Mr. David McBride, Director NASA: “The key technology for integrating UAS into the NAS is detect and avoid”
NASA: testing sensors on UAS which identify obstacles and automatically avoid them
The Northeast UAS Airspace Integration Research Alliance (NUAIR): testing ground-based sensors to aid in detection and avoidance
Unmanned Traffic Management (UTM)
Traffic management ecosystem for uncontrolled operations that is separate from, but complementary to, the FAA's Air Traffic Management (ATM) system
NASA/FAA Joint UTM Research Plan
Some private quasi-solutions like PercisionHawk’s LATAS system
Currently have severe limitations - not “real-time,” private controlled
DRAFT ANPRM--Safe and Secure Operations of Small Unmanned Aircraft Systems (March 2019)

41. Challenge 2: Integrating UAS in Our Cities
Problem:
Part 107 too restrictive for UAS integration in city environment (operations over people, night, BVLOS, operating from a moving vehicle)
Lack of public confidence in UAS technology
Most cities lie under controlled airspace
2 Types of Deviant UAS Actors
1) Careless and Clueless
2) Criminal
How do you identify a good UAS versus a bad one? - Identification, friend or foe (IFF)

42. Challenge 2: Potential Solutions
Operations Over People
Waiver available under part 107 (UAS Pathways Program)
CNN Waiver grams and is held together with magnets, allowing it to come apart on impact.
FAA DRAFT NPRM-Operation of Small Unmanned Aircraft Systems over People (March 2019)
Permissive ops over people under 107
Based on kinetic energy limitations (drone dropping out of sky)

43. Challenge 2: Potential Solutions
LAANC - Low Altitude Authorization and Notification Capability
Access to controlled airspace near airports through near real-time processing of airspace authorizations below approved altitudes in controlled airspace
Currently available for Commercial, coming for Recreational
FAA UAS Service Providers
KittyHawk
AirMap
Skyward

44. Kissinger & Fellman, P.C.

45. Challenge 2: Potential Solutions
Remote Identification (Remote-ID)
Remote ID can identify whether a drone is a friend or foe (IFF) and allow for intervention if necessary
Who is operating? Are they authorized? (i.e. airspace, waiver, ops over people)
Key to enforcing local, state, and federal regulations
Regulatory Limbo for Remote ID
2017 FAA notice then silence
2019 FAA Selects Remote ID Service Providers

46. Questions? Brandon Dittman, Esq. Kissinger & Fellman, P.C.