CLEARED FOR TAKEOFF
Navigating the regulations forpublic sector drones
The rules and regulations that govern the use of small uncrewed aircraft systems (UAS) are premised on how the Federal Aviation Administration (FAA) defines these machines and their operators. Under the law, a two-pound UAS is an aircraft, no different from a Cessna 172 or a Boeing 737.
In its official glossary of terms, FAA defines an aircraft as a “a device that is used or intended to be used for flight in the air.” There is no mention of its size, crew, range or mission—only that it is a mechanism that flies. Likewise, people who operate UAS are pilots, holding a credential granted by the FAA: the Remote Pilot In Command (RPIC) certificate.
The successful addition of UAS to the public worker’s toolbox will necessarily require the assumption of a new professional role, that of an aviator. To use a drone is to launch a flying machine into the most crowded and complex airspace system in the world.
In operating a drone or contracting for drone services, public sector employees must understand and follow established rules and regulations, not just as individuals but as representatives of their employers, be they private firms or government agencies. Compliance not only protects other airspace users and people on the ground, but also the future potential of UAS technology and its benefits to society at large. This is true whether the government worker is the pilot or contracts for drone services: the worker’s employer will face civil liability if a contractor violates the rules and commits some action that results in a loss.
This article explains how the commercial applications of UAS are regulated by the FAA, which has exclusive domain over the National Airspace System (NAS). It clarifies the role of state and local governments in regulating drone operations, and offers examples of important legal considerations that government agencies should consider regarding the use of UAS, including trespass and nuisance, constitutional constraints and temporary regulations that are likely to be enforced during emergencies.
COMMERCIAL VS. RECREATIONAL OPERATIONS
When the first small, civil UAS took flight in the early 2010s, the Federal Aviation Regulations (FARs) did not even contemplate their existence. Therefore, the pioneers who built and piloted those early, hand-built machines drew upon the long tradition of aeromodeling—radio-controlled airplanes and helicopters—in the United States for regulatory guidance.
The first amateur radio-controlled flying competitions were held in the late 1930s, under the auspices of the Academy of Model Aeronautics (AMA). The organization still exists today as the national governing body for the hobby of model aviation, with 200,000 members and 2,500 affiliated flying sites nationwide. Over the past 80 years, the AMA has developed a robust safety program and amply demonstrated effective self-regulation of the community it serves.
The AMA’s regulation of model aircraft was so successful over the decades that the FAA saw no need to issue additional rules. In 1981, the agency issued a single-page advisory document aimed at hobbyists that reiterated the AMA’s own guidance. Many of the earliest small, civil UAS pilots had emerged from the hobby community and employed the same underlying technology as model aircraft to build their own drones, so they looked to the FAA’s advisory circular as the legal basis for their operations.
The FAA explicitly rejected this reasoning in 2007 when the technological feasibility of private drone aircraft came into clear focus. While the agency deployed a variety of
