Drones and the Rules of the Road

Share By Alexandra Kirkman

There’s been a lot of buzz about drones lately…but is most of it hype?

Drones are definitely “trending” these days, with everyone from retailers and social networks to the United Arab Emirates government looking to get their own versions of the unmanned aircraft systems buzzing around in the sky.

It may sound like something straight out of The Jetsons, but are drones plausible, and if so, how far off are they?

In December, Amazon announced, to great fanfare, Prime Air, a new delivery system the company is developing, that aims to get packages to customers within 30 minutes of their order via unmanned aerial vehicles.

In February, the United Arab Emirates, eager to be recognized as a business center and innovation hub in the Middle East, rolled out its plans to use drones to deliver government documents to residents, and to monitor air traffic. Engineers recently began testing the technology in Dubai, and the government last month announced an international contest with a $1 million prize for the drone use that would best serve the public interest.

Even Facebook is reportedly looking to get a piece of the drone action by buying Titan Aerospace, a maker of solar-powered drones that the company would use to bring connectivity to parts of the world that don’t have Internet access.

The drone buzz got even louder on March 6, when a federal judge threw out a $10,000 fine levied by the Federal Aviation Administration (FAA) against Raphael Pirker, who had used a small glider to take pictures and video of the University of Virginia for an ad he was creating for its medical school. Pirker is the first person the agency has tried to fine for flying a drone for commercial purposes.

In essence, the ruling means that commercial drones are, at least for the moment, legal in U.S. skies. That’s because of the judge’s finding that the FAA hasn’t yet made any legally binding rules against them.

“A lot of people were ecstatic about the opinion, but it was based on the assumption that the aircraft in question is a model aircraft,” explains Tim Adelman, head of the UAS practice group in the Annapolis, Md., office of law firm LeClairRyan, and an instrument-rated, certified flight instructor.

“Does that mean every remote-controlled aircraft is considered a model aircraft, and therefore not subject to FAA regulations?”

He cites the Global Hawk, an unmanned, remote-controlled aerial vehicle surveillance aircraft the size of a 727 or 737 jet, as an example. The aircraft is something few people would compare to a glider you build with your dad and fly in the park.

“At what point do you go from a model aircraft to an aircraft?”

While the ruling might seem, at first pass, to open the door to commercial applications in the U.S.—that is, until the FAA takes further action—the reality is that widespread use of drones is likely years away, for a variety of reasons.

The first hurdle is indeed the FAA, which has been dragging its feet as administrators try to figure out how best to regulate drones. In 2012, Congress tasked the FAA with developing comprehensive regulations for drones to zip through the same airspace as passenger planes by September 2015. So far the FAA has issued a roadmap for how it will develop the regulations, and named six groups to test various aspects of drone safety—including how to prevent drones from colliding with planes, and how to have them land safely if they lose contact with remote pilots—but those decisions were rolled out months behind schedule.

“The FAA has been very slow with coming out with a final rule, but part of the delay is justified,” says Adelman. “There are a lot of issues that have to be addressed with the use of drones.”

Their limitations are also largely practical.

“When you start thinking of ideas of how drones could be used, one of the issues is what we call ‘reality vs. Hollywood’,” Adelman says.

While the technology is largely in place to let a drone pick up, say, a jug of milk and fly across town to deliver it to your doorstep, the problem arises when that drone disappears over the rooftops.

“Most drone operations that currently happen are ‘line of sight.’ Let’s say I fly my drone only a quarter-mile from me, but the whole time I’m looking at it, so if I see another hazard or aircraft come into the airspace, I can move my aircraft out of the way,” he explains.

“What happens when I can’t see my drone anymore? That’s a fundamental problem—and there are a lot of dollars going into researching the solution, called sense-and-avoid technology.”

There’s also the pesky issue of noise pollution caused by drones buzzing over houses, and the very real one of how drones, which generally fly at a few hundred feet, will navigate airspace near airports and other hazards.

“You have to look at the various areas of the country and realize that aviation operates differently in different areas— there are airports with planes coming in and out, helicopters, sea planes flying by the ocean, etcetera. So that makes it difficult to come up with a one-size-fits-all rule,” Adelman says. “There are ways to make this work, but part of what the FAA is struggling with is how to figure that out.”

In the meantime, Adelman predicts the FAA will be forced to clarify its position on what constitutes a regulated unmanned aircraft system versus an unregulated model.

“I would not be surprised to see the FAA issue an emergency rule or order to address when a drone is considered an aircraft for enforcement purposes,” he said in a recent press release the firm issued in reference to the Pirker ruling. “On the positive side, this may expedite the rulemaking process the FAA has been muddling with for several years. For the time being, the ambiguity from the judge’s ruling will inhibit the FAA’s ability to enforce regulations dealing with drone flights.”

While the regulatory framework remains murky, there’s no question that a slew of eager entrepreneurs are poised to strike once the FAA makes a decision. Startups such as 3D Robotics, Skycatch, and Matternet are part of a veritable cottage drone industry, and a recent article reported that last year was a record year for venture investment in drones, with some $79 million in 15 deals, including some by such notable investors as Google Ventures and Andreessen Horowitz.

The Association of Unmanned Vehicle Systems International, a drone industry group, projects there will be 100,000 jobs, generating $82 billion in economic activity, in the decade after the aircraft are allowed in general airspace.

But chances are, the reality of a drone delivering your pizza on a Friday night is a long way off.

“If the FAA doesn’t take immediate action, I think we’ll see a lot more drone use by farmers, real estate agents, and for things like pipeline surveillance,” says Adelman. “As for the Amazon theory, conceptually they’re pushing the envelope—which is a great thing—but the reality of that idea being implemented into drones delivering packages to our doorsteps? That’s not going to happen in the near future.”

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