The popularity and commercial availability of drones has exploded in the last few years leading many to question – who is regulating the safety of drones?
Remotely piloted or operated unmanned aerial vehicles—commonly known as drones—come in all shapes and sizes. There is a drone for every budget and every application. They range from small, inexpensive, battery-powered toys that weigh just a few ounces and fly inside a room to large unmanned aircraft, costing millions of dollars, which are piloted from a remote location and can operate for hours. Drones vary in weight, speed, altitude capability, propulsion systems, and remote control features. However, drones share a common characteristic: They are all unmanned and depend on a remote operator or computer to control their activities.
Over the past several years, the U.S. military has used drones in its pursuit of terrorists abroad. Businesses are also pursuing civil drone applications. Some businesses use existing drone products, while others are developing drones specifically to meet their needs. In the business sector, drones have many potential uses—from fighting forest fires to security surveillance to cargo delivery. In the consumer market, drones are increasingly popular for everything from wedding photography to real estate photos.
Industry groups have projected that the drone industry will generate $82 billion in annual revenue by 2025. However, these groups cautioned that the projected growth depends on the government promptly adopting appropriate and progressive legal and regulatory frameworks.
After years of inaction by the Federal Aviation Administration (FAA), Congress passed the FAA Modernization and Reform Act of 2012 (FMRA), directing the agency to “develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.”
In February of 2015, the FAA proposed new regulations on small drones (less than 55 pounds) that establish minimum rules and standards for operating small drones for commercial or non-recreational purposes. Small drones used for recreational purposes that meet the criteria specified in §336 of the FMRA are exempt from the proposed rules.
From an operational standpoint, the rules limit drone weight to a 55-pound maximum; require that the operator maintain unaided visual contact with the drone at all times; and restrict operation to daylight hours, a maximum speed of 100 mph, and a maximum altitude of 500 feet above ground level. Drones may be operated in designated airspace with an air traffic controller’s permission.
What is missing from the proposed rules? Most notably, safety standards designed to mitigate the collision risk between a small drone and another aircraft. The FAA acknowledged this risk in its 2013 UAS Roadmap. Because drones are unmanned, the traditional “see and avoid” system that pilots use to avert midair collisions does not translate well. Pilots and air traffic controllers have difficulty seeing drones visually or on radar because of their size and because drones’ component materials are nonmetallic and do not reflect radar signals well.
A drone cannot “see” other aircraft. The operator, on the ground and often focused on keeping visual contact with the drone, has limited or no ability to visually scan for approaching aircraft. Unless the drone has technology to automatically provide self-separation from other aircraft—maintaining a minimum distance to avoid collision without guidance from air traffic control—the risk of midair collisions is significant. There are several documented reports of near misses involving drones and airliners.20
Despite these challenges, the initial proposed rules simply require the small drone operator to maintain direct visual contact with the drone and to avoid other aircraft. There is no requirement for any type of device, such as a transponder, to help air traffic controllers and other aircraft see the drone on their tracking equipment.
In November of 2017, a research team from the Alliance for System Safety of UAS through Research Excellence (ASSURE) released a report that concludes that drones that collide with large manned aircraft can cause more structural damage than birds of the same weight for a given impact speed. The researchers concluded that unmanned aircraft system manufacturers should adopt “detect and avoid” or “geo-fencing” capabilities to reduce the probability of collisions with other aircraft. The FAA will use the research results to help develop operational and collision risk mitigation requirements for drones in the future.
With this knowledge of the risks associated with drone collisions and the continued popularity of drone use, one would expect the FAA and/or local governments to enact rules and regulations regarding the use of drones. Additionally, operators of drones need to be aware of the risks and dangers associated with drone use and must be held responsible if they operate a drone in a dangerous or unsafe manner.
A litigation associate at Rapoport Weisberg & Sims, P.C., Ms. VanOverloop focuses her practice on construction negligence, trucking litigation, medical malpractice, products liability and wrongful death cases. Her impressive record in representing clients has had her named an Illinois Super Lawyer Rising Star for the past 6 years.