Jason Taken

Associate Editor

Loyola University Chicago School of Law, J.D. 2019

 

Technological advances in aviation have turned what was once a matter of science fiction into reality. With that increase in technology comes a need for regulation of those technologies and their integration into daily lives. In 2016, the Federal Aviation Administration (“FAA”) finalized its first iteration of the rules that would begin to mold how drones are used.

Why the need for drone regulation?

Prior to the promulgation of the FAA’s drone regulations, the FAA faced challenges in applying the regulations originally designed for “aircraft,” as the term was generally known, to drone activities. The distinction between “aircraft” in the general use of the term and “aircraft” when used to describe a drone has prompted controversy in litigation and enforcement of the FAA’s regulations. Before these relegations made their debut in the Federal Register, there were not many rules that could bind drone operators and their operation of newer, smaller drone aircraft. This raised issues in both safety of people on the ground, as well as those operating within the same airspace in the national airspace system (“NAS”) that was now being shared with drones and airliners alike.

Realizing this conundrum, the FAA began to implement express regulations governing drone operations, with a goal in mind of allowing airplanes to share NAS with the newer, more versatile drone aircraft. In doing so, they started with the FAA Modernization and Reform Act of 2012, and culminated the process with the FAA’s promulgation of 14 CFR Part 107.

What drone regulations existed prior to Part 107?

Prior to the creation of the Part 107 regulations, drone operators were bound by only a few of the regulations within Part 91, which were the only regulations available at the inception of this new technology. It is not clear whether the framers of Part 91 anticipated these regulations to bind drones, but applying them was required to maintain order within the highways of the sky. As such, some of the key regulations that existed prior to Part 107’s creation are important, as they reveal the catalyst behind the FAA’s urgency to codify express requirements for drones and other aircraft to share the air.

First, and most importantly, 14 CFR 91.3 codifies the “[r]esponsibility and authority of the pilot in command.” The regulation states that “[t]he pilot in command of an aircraft is directly responsible for . . . the operation of th[e] aircraft.” This is the governing regulation that places complete authority and responsibility on the pilot in command of the aircraft, or, in the newer instances, the drone operator. When operators began using drones as aircraft, this regulation was the “catch all” that bound drone operators when controversy arose. Rule makers began to realize the need for a better solution. The rather vague language contained throughout a lot of the regulations did not help judges, or rule makers, in distinguishing or applying the law as it was written, at the time, to drone activity.

Next, 14 CFR 91.13 discusses careless or reckless operation. The substantive portions of this regulation read just as one might think. “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” It is not difficult to discern what this means in the context of an aircraft, as they are generally known. In the context of drones, however, the FAA and the courts were left with unanswered questions. What defines careless in the context of drones? What defines reckless in that same context? The terms and their meanings, depending on the context, can vary significantly. The FAA used these ambiguities, inter alia, to drive the introduction of Part 107.

Part 107 reconciles previous drone regulation issues

In 2016, the FAA introduced 14 CFR 107, Small Unmanned Aircraft Systems. These regulations begin to reconcile the ambiguities that unmanned aircraft pilots needed in order to safely navigate the skies along with pilots that were actually onboard aircraft. With respect to drones, some of the major differences arise from the fact that the pilot is not on-board, but rather, somewhere separated in space, from the aircraft itself.

14 CFR 107.31, “Visual line of sight aircraft operation” requires that the location, altitude, attitude, and direction of flight must be known to either the pilot in command, or a designated observer, at all times. This is a new nuance required of unmanned flight. The need for this regulation is self-evident, and was not previously conceived of because of the fact this information is readily available, and obvious, to a pilot onboard. Even the visual observers, in accordance with Part 107.33, must meet certain requirements where visual line of sight is not utilized during flight.

Another seemingly common-sense regulation governs operation over human beings (14 CFR 107.39).  In having to deal with the nuances found in drone operation, and to maintain safety as a priority in these operations, a drone pilot is not allowed to operate the aircraft over human beings unless that person is directly involved in flight or there is a structure covering that person such that failure of the drone (i.e., it falling out of the sky) would not injure the individuals underneath. This is an important regulation, as many of the early drone accidents and litigation involved injuries to people who were underneath the drone. As was discussed earlier, the regulation that covered this aspect only covered circumstances that were “reckless” or “careless.” While this regulation is essentially word-for-word contained within Part 107 now, the terminology now has a clearer meaning. If a drone pilot is found to have violated the “operation over human beings” regulation (107.39), the pilot would likely also be cited for operating the drone in a “reckless” manner. As drone technology becomes commonplace, these regulations, and terminology, will inevitably gain more clarity.

An understanding of Part 107 will likely be more commonplace as drone activity becomes a way of life. As technology advances, rule makers will need to be in the driver’s seat to ensure that the regulations do not fall to the mercy of technology advancement.