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Civilian drones now seem to be everywhere in one way or another. Emergency responders are using drones for search and rescue. Hobbyists are flying drones for enjoyment and entertainment. Many businesses are using drones for several purposes, such as marketing, video and photography, mapping, and more.

Drones are an attractive option for a broad range of individuals seeking to engage in a new hobby or to use cutting edge technology for public, commercial, or educational purposes. Additionally, drones are versatile, come in a variety of models, and offer a variety of creative options and features.

Generally, civilian drones are simply remotely controlled aircraft under 55 pounds. The Federal Aviation Administration (“FAA”) classifies drones as Unmanned Aircraft Systems (“UAS”) and regulates their use in the airspace of the United States. As rapidly as the popularity and technology of drones has grown in recent years, so have questions about the lawful use of drones by businesses and individuals. Therefore, there are efforts underway to develop clear regulations for drone usage at the federal, state, and local levels.

The proposed regulations and local policies seek to address issues in two main categories: drone operators and drone operations. As for the operators, the regulations concern licensing requirements and qualifications for drone pilots. The drone operations regulations address a wide variety of different rules depending on the size, use, time, location, altitude, and the pilot’s ability to see the drone while in flight.

Currently, there are several layers to drone regulation. First, the National Transportation Safety Board has held that drones are “aircraft” as that term is defined under federal law and that Federal Aviation Regulation (“FAR”) 91.13, which prohibits carless and reckless aircraft operations, applies to drone usage. Despite this holding, there still appear to be questions as to whether all FARs now apply to drone usage.

Additionally, the FAA has issued its interpretation of Section 336 of the FAA Modernization and Reform Act (“FMRA”) concerning drone usage. But, the FAA’s interpretation might not be enforceable. In Perez v. Mortgage Bankers Association, 135 S.Ct. 1199, 1210 (2015), the United States Supreme Court indicated interpretive rules are not the same as legislative rules. This message from the Supreme Court has made it unclear what level of consideration lower courts should give to interpretations from an administrative agency, such as the FAA.

Local governments, universities, businesses, and various agencies may also have policies and procedures in place claiming to regulate drone usage in their locations. At this time, these local policies and ordinances may or may not be enforceable. This is because the law regulating the use of airspace is reserved to the federal government and federal law will preempt the state or local rules. Nevertheless, until there is more clarity of the federal law concerning drone usage, it is important to be aware of any state and local rules and the potential risks of noncompliance before flying.

While there are currently several unanswered questions surrounding drone usage, the FAA rulemaking process has begun and there may be a set of clear regulations regarding drones in the very near future.

However, even with regulations in place, there will still be many legal issues related to drones usage that have yet to be directly addressed. The largest among these are privacy and private property airspace concerns.

In light of the current uncertainty surrounding drone usage, drone pilots, businesses, and anyone considering using a drone should carefully research their particular drone situation and exercise caution before engaging in flight. New information, rules, and policies are being issued frequently. Remaining informed is critical to appropriate drone use during this time of quick growth and development.

— D. Michael Allen

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