For the October issue of this column for the Bulletin, I wrote about drones and the issues arising from their increased presence. News coverage on drones has drastically increased since then. The FAA, for example, has tightened existing rules.  In addition, Walmart has applied to the FAA for permission to test drones outdoors for the likely purpose of making deliveries to customers (in both its own parking lots or at customer homes), as well as for internal use at its own buildings, warehouses and distribution centers.
 
Accordingly, it does not seem that drones will disappear any time soon.  In addition to drone usage for supply chain management, drones are increasingly being sold for public recreational use—drones just may be the perfect gift this year for that “tough-to-buy-for” person on your list.  But, before you race to buy one, you must be aware of recent regulation developments.  And, one more thing—I’ve witnessed my very own drone crash and it was not pretty (more on that later).
 
What’s prompted the need for FAA intervention (some might call it “adult supervision”) has been the flurry of sightings of unlicensed drone flights over airports and other crowded public places.  Essentially, drones have become a “public safety hazard.”  This danger will only increase in light of recent sales estimates.  The Consumer Electronics Association has forecasted that 700,000 drones will be purchased in 2015 ($105 million in revenue this year alone), with $1.1 million in anticipated sales for 2016 (more information is here ).  Thus, the rogue drone flight may become a more common occurrence.  With this in mind, the Federal Aviation Administration, in conjunction with the U.S. Department of Transportation, indicated in an October 22, 2015 statement that new regulations must be adopted.
 
As a quick review, the Federal Aviation Administration is the primary regulator of drones, which are formally referred to as Unmanned Aircraft System (“UAS”), Unmanned Aerial Vehicle (“UAV”), or just “UA”.  Under 49 U.S.C. 40102(a)(6), an “aircraft” is defined as “any contrivance invented, used or designed to navigate or fly in the air,” and an “unmanned aircraft” is defined as an “aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.” (P.L. 112-95, Section 331(8)).  Also, with respect to current regulations, 14 C.F.R. Section 91.13(a) states that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”  Note that a violation of the statute does not require specific intent to injure others or to damage property—simply endangering the life or property of another is a violation.  Given the increase in drone frequency, the FAA has had no choice but to act.
 
The FAA previously identified three primary classifications for drones—“model,” “public,” and “civil.”  The FAA regulations do not apply to aircraft in the “model” category so long as: (1) each device is flown for hobby or recreational purposes; (2) each device is operated in accordance with community-based safety guidelines; (3) each device weighs no more than 55 pounds; (4) each device yields to manned aircraft; and (5) notice of each flight is provided to local air traffic control officials in advance of launch.  The most important distinction is learned from item 1; in the event a device is flown for any commercial purpose, the FAA has—and takes—authority to regulate such operations.  However, as to the non-commercial user, the operator must maintain a line of sight with the device from a fixed location (the back of a car is unacceptable, even if the car is stopped), and a model device cannot fly more than 400 feet above the ground.  The height restriction is simply based on the FAA’s rulings. Municipalities may enforce lower flight limits.  (For more information on rules for flying model aircraft, is here. Most importantly, if a drone is being used for commercial purposes (and that means any commercial purposes), the FAA has the authority to regulate its flight.
 
While the FCC has not previously enforced rules governing those devices it considers as “model” aircraft, the October notice should come as a sign that times may change for the drone hobbyist.  Quoting from the Federal Register notice previously cited, “Historically, the FAA, through the exercise of its discretion, has not enforced the statutory requirements for aircraft registration in 49 U.S.C. 44101 for model aircraft.  As evidenced by the recent reports of unsafe UAS operations, the lack of awareness of operators regarding what must be done to operate UAS safely in the National Aerospace System, and the lack of identification of UAS and their operators pose significant challenges in ensuring accountability for responsible use.” As such, the FAA has set up a task force whose recommendations will be made to the Department of Transportation by November 20th (after I’ve written this, but before you’ve read it).  What’s anticipated, however, is that a national registry of drones, regardless of the intention of their owners/operators, including those who plan for hobby and/or recreational uses, will be required to not only register the devices on a to-be-created electronic registry, but to place unique and distinctive identifying information on each device so the owners/operators can be identified (and presumably held responsible). All other rules, including the line of sight requirement, remain in place.  It is also anticipated that these identifying requirements will become effective sooner rather than later, although no dates have yet been established.
 
Finally, my very own drone story.  In mid-October, I attended a lovely wedding in Lewiston. It was a cold and windy day. Following the ceremony as we walked out of the church, all guests were handed balloons.  The wedding photographer (obviously not being familiar with the obligations associated with drone use for commercial operators) had placed a drone between the church and the limo ready to take the wedding party away for photos.  The combination of wind and balloons did not bode well for the drone that was…you guessed it…taken out by a balloon, crashing to the ground with a thud and breaking into pieces at the door of the limo.  No one was hurt, but having seen it drop from the sky, I confess to having a new appreciation for increased regulation.
 
So if you’re planning on a drone purchase for Christmas, be prepared to register it. Also, if you’re in a crowded place, combine Dr. Seuss’s memorable words, “Marco, keep your eyelids up to see what you can see” with more pedestrian ones from me “so that you can move out of the way quickly if need be…”