By: Chad Lieberman
The Federal Aviation Administration (“FAA”) recently promulgated new regulations regarding the operation of small unmanned aircraft (“drones”). The regulations are contained within Part 107 of the Title 14 Code of Federal Regulations and went into effect on August 29, 2016. The new regulations are primarily aimed at streamlining two issues: (1) certification of drones and operators; and (2) regulating the use of drones within the national airspace system (“NAS”).
The FAA’s role is to maintain safety within the NAS and the agency is thus charged with developing policies and regulations regarding the use of the NAS, the aircrafts operating within the NAS and the individuals operating those aircrafts. 49 U.S.C. §§ 40103, 44502, 44701-44735. The FAA possesses the authority to impose both civil and criminal penalties upon those in violation of NAS regulations. 14 C.F.R. §§ 13.14, 13.23.
As to licensing, the new Part 107 virtually eliminates an old system based upon pilot training. The FAA thus recognizes that drone operators are not “pilots” in the conventional sense and created a test for operators to obtain “remote pilot airman certificates” (e.g., not a pilot license). Additionally, drones weighing between 0.55 and 55 pounds must be registered with the FAA and be marked with a registration number.
As to operation, the new Part 107 establishes a set of simple rules. For example, a drone may not be operated above 400 feet from ground level and may not exceed a ground speed of 100 mph. Drones cannot be flown over persons not directly participating in the operation unless those persons are under protective structures.
Since 2013, over 20 states have passed laws addressing the use of drones with most, if not all, addressing privacy and safety concerns. The Colorado State Legislature has introduced four bills over the last few years regarding the same, but all have been shelved indefinitely due to, we believe, the impending implementation of Part 107. Colorado has only one current law regarding the use of drones: it is unlawful to use a drone to look for, scout, or detect wildlife as an aid in the hunting or taking of wildlife. 2 Colo. Code Regs. 406-0:0004. We expect states such as Colorado to introduce new bills in the upcoming months that are consistent with the newly instituted regulations.
The use of drones in civil litigation is increasing in frequency. Knowledge of the FAA’s regulations and state laws regarding the use of drones is critical – as violations thereof may negatively impact the admissibility of evidence and may impute ethical concerns.
Both a summary and a full version of Part 107 can be found on the FAA’s website: https://www.faa.gov/uas/