With a New Year Comes New Regulations for the Commercial Drone Industry
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With a New Year Comes New
Regulations for the Commercial Drone
Industry
January 24, 2019
By late January, the New Year’s resolutions we had Authors/Presenters
planned to start strong are now either our every-day
motivation or a lost cause. Here, at Bryan Cave
Leighton Paisner LLP (“BCLP”), the Unmanned Aerial
Vehicle Team has stuck with its New Year’s resolution
to lean into 2019 as a new and exciting year for
Shalem A. Massey
autonomous aircraft innovations, regulation, and Co-Author
industry growth. Partner
Irvine, California
2018: A Year in Review shalem.massey@bclplaw.com
Autonomous aircraft—also known as Unmanned Aerial
Vehicles (“UAVs”), Unmanned Aircraft Systems (“UAS”)
or simply “drones”—were the subject of much
discussion last year. Last year, Congress passed the
Federal Aviation Administration (“FAA”) Reauthorization
Jennifer R. Steeve
Act of 2018 (the “Act”), continuing the FAA’s mission to
Co-Author
comprehensively integrate drones into the national
Associate
airspace;1 the FAA initiated a prototype Low Altitude Irvine, California
jennifer.steeve@bclplaw.com
Authorization and Notification Capability program
(“LAANC”) that provides real-time airspace
authorizations for drones near airports;2 and the FAA
launched the UAS Integration Pilot Program (“UAS IPP”)
to allow states to test drone flights in various ways
otherwise prohibited by the FAA’s Part 107 rules—or the
Negah M. Daily
rules governing the operation of drones weighing less Co-Author
than 55 pounds.3 Associate
Irvine, California
Page 1 of 7negah.daily@bclplaw.com
2019: Off to a Strong Start
This year, we may expect not only continued
developments in drone law and regulation in response to a growing commercial drone market,
but also more serious developments in response to evolving security concerns.
The New Year started strong with two pre-filed bills by Representative Clay Yarborough (FL)
and Senator Darryl Rouson (FL), seeking access to drones for surveillance purposes on
behalf of state law enforcement. 4 And, just last week, the Trump Administration’s
Transportation Secretary, Elaine Chao, proposed new rules for the FAA’s integration of
drones into the national airspace.5 “Drones . . . are well on their way to mainstream
deployment,” Ms. Chao said during her speech in Washington, D.C.6 “[T]o reap the
considerable economic benefits of this growing industry,” she said, “we’d like to share with you
. . . new [Department of Transportation (“DOT”)] initiatives to encourage the safe testing and
deployment of drones.”7 The first, a Notice of Proposed Rulemaking, presents rules allowing
drones to operate over populated areas or to fly at night without needing special waivers from
the FAA; such operation is conditioned on the drone operator meeting certain criteria for
training, testing, and anti-collision lighting.8 Currently, night waivers are the most commonly
granted waiver, often for commercial operators whose drones have thermal inspection
capabilities.9
Flying over populated areas is another well sought-after waiver, as the ability to fly drones
over people can be helpful for crowd control, newsgathering, and infrastructure inspections.10
Yet, flights over people can be risky, as seen last year when a drone inspecting the famously
sinking Millennium Tower in San Francisco malfunctioned and plunged at pedestrians walking
below.11 Thankfully, no pedestrians were struck. The DOT’s proposed rules are designed to
minimize risk to people on the ground by restricting the weight of eligible drones and requiring
operators to design their drones in a way that will prevent serious injury to people.12
Ms. Chao also announced that the FAA will seek public comments on drone security issues
and plans to further develop the UAS Traffic Management Pilot Project—a parallel to the
FAA’s traditional air traffic management system but for drones—by having awarded new
government contracts to vendors to continue the project.13
Such flurried activity in drone law and regulation is likely an attempt by policymakers to
provide a more robust regulatory framework for the nearly 1.3 million drones and 116,000
operators registered in the United States.14 Thus far, a comprehensive and effective
Page 2 of 7regulatory framework appears to be a top priority for legislators in 2019.
2019: What’s Next?
The DOT’s proposed rules may benefit companies like Amazon and Alphabet, Inc.—who are
readying drone fleets for package deliveries once given the government clearance.15 Drones
already provide tremendous benefits in areas such as law enforcement surveillance, disaster
and humanitarian aid, scientific research, infrastructure maintenance, and news
broadcasting.16 Recent developments in drone technology present further opportunities for a
commercialized industry—whether seen in the first successful, test delivery of a kidney
transplant or incredibly precise aerial assessments of construction projects.17 Companies are
working to commercialize and deploy drones across various sectors and markets—with many
start-ups dominating the field, Hyundai Motor Company announcing a new partnership in the
field, and Boeing scheduling the first test flight of its solar-powered drone.18
Continued investment in and protection of the commercial drone market will likely maintain the
industry’s upward trajectory. A report from Goldman Sachs predicts that the total spending on
drones worldwide will be over $100 billion by the year 2020.19 National defense remains the
biggest spender in the drone market, with consumers coming in second.20 Vendors in the
construction and agricultural markets are predicted to experience the largest growth due to
specialty drone use.21 The global “counter-UAV market,” which references the industry that
develops drone technology countermeasures, also expects growth estimated to reach $1.85
billion by 2024.22
The FAA has only begun to revamp rules related to drone operations, still having left
untouched the “beyond visual line of sight” waiver companies would often seek to expand their
commercial operations.23 The agency also plans to propose another set of rules in May 2019
concerning the remote identification of drones.24 The rules would require small drones to
broadcast their identity and position so authorities may track them; such regulations would
lessen security concerns and likely reduce the need for drone countermeasures, if the tracking
technology works as it should. 25 One of the remote identification systems being vetted is
called “AUDS.”26 It could take longer than a year to finalize the proposed rules, meaning
flights over populated areas probably won’t be permitted until 2020 or later.27
Meanwhile, the growing number of unauthorized drone flights in controlled airspace has
prompted conversations about national security concerns. Rogue drones have been known to
interfere with rescue operations and firefighter efforts.28 Rogue drones have increased at
Page 3 of 7sporting events and concerts, with a man arrested not long ago for using an unauthorized
drone to drop political pamphlets over a football stadium full of fans.29 Last month, reports of
unauthorized drones at London’s Heathrow and Gatwick airports disrupted air travel, and an
unauthorized drone was said to have collided with a Boeing 737 passenger jet over Tijuana,
Mexico.30 Just this week, flights were grounded at Newark International Airport after a pilot
told air traffic control that an unauthorized drone came within thirty feet of his aircraft.31
According to the FAA, over 6,000 drones have been spotted mid-flight by airline personnel,
some flying just a few feet away from commercial aircraft.32 Such sightings provide insight on
the serious risk of drone collision. A 2017 FAA study concluded that a drone collision could
cause significant damage to the surface areas of commercial aircraft.33
This year, the FAA will likely act under its authority granted in the FAA Reauthorization Act of
2018 to combat dangerous drone use. On October 5, 2018, President Trump signed the Act,
building on the groundwork laid by the FAA Reauthorization Act of 2012.34 The Act requires
the FAA update many of its existing programs and establish new ones, including (1) a process
for accepting risk-based, consensus safety standards related to design, production, and
modification of small drones; (2) authorizations for government agencies seeking to operate
drones for police and firefighting purposes; (3) special permits for drones to operate beyond
the visual line of sight; and (4) parameters for allowing commercial drone delivery
packages.35 The Act also requires the FAA to submit research reports to Congress on
pressing issues like drone data privacy and security.36
Among the previously mentioned provisions, the Act provides new authority for the
Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) to “mitigate
the threat” that drones pose “to the security of a covered facility.”37 Such mitigating actions
allow for warnings to drone operators, jamming signals, tracking and seizing drones, and
using “reasonable force, if necessary to destroy the UAS.”38 The authority comes in response
to the increasing use of drones by terrorist and criminal groups for nefarious purposes such as
cross-border smuggling operations.39 Controversy remains about the Act as it gives the DHS
and DOJ wide discretion to define when a drone poses a “threat” and when it threatens “a
covered facility,” without prior judicial authorization.40 If these agencies determine that a
drone meets these two definitions, they are allowed to track, seize, or destroy the drone. In
2019, we expect DHS and DOJ to roll out proposed rules under this new authority. We expect
the rules to have a similar effect to those issued by the Department of Defense (“DOD”) and
Department of Energy (“DOE”), agencies which received the authority to track and mitigate
Page 4 of 7drone threats under the 2017 and 2018 National Defense Authorization Acts.41
The Commercial Drone Alliance (“the Alliance”), a group that represents members of the
commercial drone industry, has warned that any legislation, if not narrowly tailored, could
interfere with the commercial development and operation of drones.42 The Alliance issued
guiding principles for legislators, including that commercial operators be given sufficient notice
of targeted activity and be listed in a government database as “trusted” operators to minimize
false identification of threats.43
The Uniform Law Commission (ULC), a group working on a proposed “Tort Law Relating to
Drones Act,” also advocates narrowly tailored commercial drone laws, recommending that
states draw a line at 200 feet in the sky to establish new aerial trespass zones for property
owners.44 Yet, such legislation could inhibit commercial development of drone deliveries by
introducing complicated no-fly zones in people’s backyards. In the meantime, states like
Pennsylvania have passed laws to protect people’s privacy from drone use.45
Ultimately, 2019 is shaping up to be a landmark year for U.S. drone law and regulation. The
UAV Team here at BCLP is monitoring the drone landscape for further development.
The authors would like to recognize summer associate Bernice Diaz for her contribution to this
article.
1. Ben Husch, Congress Passes Five-year FAA Reauthorization Act, National Conference of State Legislatures
Blog (Oct. 4, 2018), http://www.ncsl.org/blog/2018/10/04/congress-passes-5-year-faa-reauthorization-
act.aspx.
2. UAS Data Exchange (LAANC), Federal Aviation Administration,
https://www.faa.gov/uas/programs_partnerships/data_exchange/.
3. Mike Rees, FAA Begins UAS Integration Pilot Program, Unmanned Systems Technology (Aug. 31, 2018),
https://www.unmannedsystemstechnology.com/2018/08/faa-begins-uas-integration-pilot-program/.
4. John Haughey, Two Pre-filed 2019 Bills Seek to Lift Ban on Law Enforcement’s Use of Drones, Watchdog.org
(Dec. 29, 2018) https://www.watchdog.org/florida/two-pre-filed-bills-seek-to-lift-ban-on-law/article_19d6658e-
023e-11e9-aa9c-8f92cc84ccfd.html; see also Dan Boylan, Drones Likely to be Regulated by State, City
Governments in 2019, The Washington Times (Jan. 1, 2019),
https://www.washingtontimes.com/news/2019/jan/1/drones-likely-to-be-regulated-by-state-city-govern/.
5. Remarks Prepared for Delivery by U.S. Secretary of Transportation Elaine L. Chao, Transportation Research
Board Annual Meeting, U.S. Department of Transportation (Jan. 14, 2019),
https://www.transportation.gov/briefing-room/transportation-research-board-annual-meeting-washington-dc
(hereinafter “Statement of Elaine Chao, Transportation Secretary”).
6. Id.
7. Id.
8. Olivia Beavers, Trump Administration Proposes Allowing Drone Flights at Night, over Populous Areas, The
Hill (Jan. 14, 2019), https://thehill.com/policy/cybersecurity/425256-us-proposes-allowing-drones-to-fly-at-
night-over-populous-areas-reports.
9. Miriam McNabb, FAA Proposes New Drone Regs and a New Pilot Program: One More Step Towards Drone
Integration, dronelife (Jan. 15, 2019), https://dronelife.com/2019/01/15/faa-proposes-new-drone-regs-and-a-
new-pilot-program-one-more-step-towards-drone-integration/.
10. Brianna Gurciullo, Eager Drone Industry Gets New Regs, Despite Shutdown, Politico (Jan 14, 2019),
https://www.politico.com/story/2019/01/14/drones-federal-rules-transportation-department-crowds-1099073.
11. Id.
12. Taylor Hatmaker, New FAA Proposal Would Let Drones Fly over People and at Night without a Waiver, Tech
Crunch (Jan. 14, 2019), https://techcrunch.com/2019/01/14/can-drones-fly-at-night-over-people/.
13. DOT UAS Initiatives, Federal Aviation Administration,
https://www.faa.gov/uas/programs_partnerships/DOT_initiatives/.
Page 5 of 714. Statement of Elaine Chao, Transportation Secretary, supra note 5.
15. David Shepardson, U.S. Proposes to Allow Drone Operation at Night, over People, Reuters (Jan. 14, 2019),
https://www.reuters.com/article/us-usa-drones-idUSKCN1P828W?
utm_campaign=trueAnthem:+Trending+Content&utm_content=5c3cede004d3016d629bda35&utm_medium=trueAnthem&utm_source=twitter.
16. 5 Benefits of Drones (UAS) That Might Surprise You, SRI Int’l (Aug. 7, 2013), https://www.sri.com/blog/5-
benefits-drones.
17. Devin Coldewey, First Ever Drone-Delivered Kidney is No Worse for Wear, Tech Crunch (Nov. 19, 2018),
https://techcrunch.com/2018/11/19/first-ever-drone-delivered-kidney-is-no-worse-for-wear/; the Rise of
Drones in Construction, DroneDeploy (Jun 7, 2018), https://blog.dronedeploy.com/the-rise-of-drones-in-
construction-5357b69942fa.
18. Hyundai Motor Partners with Unmanned Aerial Vehicle Startup ‘Top Flight’ to Take Future Mobility to New
Heights, Automotive World (Nov. 15, 2018), https://www.automotiveworld.com/news-releases/hyundai-motor-
partners-with-unmanned-aerial-vehicle-startup-top-flight-to-take-future-mobility-to-new-heights/; Vidi Nene,
Airborne for Months, Solar-Powered Autonomous UAV from Boeing Subsidiary, Drone Below (Nov. 19,
2018), https://dronebelow.com/2018/11/19/airborne-for-months-solar-powered-autonomous-uav-from-boeing-
subsidary/.
19. Drones Reporting for Work, Goldman Sachs & Co., https://www.goldmansachs.com/insights/technology-
driving-innovation/drones/.
20. Id.
21. Id.
22. Anti-Drone Market Size Worth $1.85 Billion By 2024 | CAGR: 24.1%, Grand View Research (May 2018),
https://www.grandviewresearch.com/press-release/global-anti-drone-market.
23. Colin Snow, Seven Trends That Will Shape the Commercial Drone Industry in 2019, Forbes, (Jan. 7, 2019)
https://www.forbes.com/sites/colinsnow/2019/01/07/seven-trends-that-will-shape-the-commercial-drone-
industry-in-2019/#59b3e7657494.
24. Gurciullo, supra note 10.
25. Alan Levin, Groundbreaking U.S. Plan Would Permit Drone Flights Over Crowds, Bloomberg News (Jan. 14,
2019) https://www.bloomberg.com/news/articles/2019-01-14/groundbreaking-u-s-plan-would-permit-drone-
flight-over-crowds; Frank Wolfe, ADS-B Unlikely Tracking Technology for Small Drones, Avionics
International, (Jan. 6, 2019) https://www.aviationtoday.com/2019/01/06/ads-b-unlikely-tracking-technology-
small-drones/.
26. Id. (“AUDS is capable of detecting, tracking and defeating small unmanned aircraft by combining lectronic-
scanning radar target detection, electro-optical (EO) tracking, classification and directional RF inhibition
capability, according to information from LiteEye, which distributes the system in the U.S.”)
27. Id.
28. Marco Margaritoff, Police Warn Drone Users Not to Interfere with L.A. Wildfire Operations, The Drive (Sep. 5,
2017), http://www.thedrive.com/aerial/14082/police-warn-drone-users-not-to-interfere-with-l-a-wildfire-
operations.
29. Marco Margaritoff, NFL Security Official Supports Bill Allowing Feds to Track, Seize, Destroy Drones, The
Drive (Sep. 14, 2018), http://www.thedrive.com/tech/23583/nfl-security-official-supports-bill-allowing-feds-to-
track-seize-destroy-drones.
30. Heathrow Airport Drone Investigated by Police and Military, BBC News, (Jan. 9, 2019)
https://www.bbc.com/news/uk-46804425; Andrea Navarro and Alan Levin, Boeing 737 Passenger Jet
Damaged in Possible Midair Drone Hit, Bloomberg (Dec. 13, 2018),
https://www.bloomberg.com/news/articles/2018-12-13/aeromexico-737-jetliner-damaged-in-possible-midair-
drone-strike.
31. Dave Lee, Drone Sighting Disrupts Major US Airport, BBC News, (Jan. 23, 2019)
https://www.bbc.com/news/technology-46968419.
32. Id.
33. Id.
34. Steve Amitay, New Aviation Law Makes Positive Changes to Current Rules for Commercial Drone Use, ASIS
International (Nov. 1, 2018), https://www.asisonline.org/publications--resources/news/blog/new-aviation-law-
makes-positive-changes-to-current-rules-for-commercial-drone-use/.
35. The FAA Reauthorization Act of 2018, H.R. 302, 115th Cong. (2018)
https://www.congress.gov/115/bills/hr302/BILLS-115hr302enr.pdf; Jeff Davis, Summary of Final Compromise
FAA Reauthorization Act of 2018, Eno Transportation Weekly, (Sept. 24, 2018)
https://www.enotrans.org/article/summary-of-final-compromise-faa-reauthorization-act-of-2018/.
36. Id.
37. Id.
38. Amitay, supra note 34.
39. See Alexa Lardieri, Homeland Security: Warns of Weaponized Drones as Terror Threat, U.S. News (Nov. 10,
2017), https://www.usnews.com/news/national-news/articles/2017-11-10/homeland-security-warns-of-
weaponized-drones-as-terror-threat; Stephen Dinan, Drones Become Latest Tool Drug Cartels Use to
Smuggle Drugs into U.S., The Wash. Times (Aug. 20, 2017),
https://www.washingtontimes.com/news/2017/aug/20/mexican-drug-cartels-using-drones-to-smuggle-heroi/.
40. See Coalition Letter Opposing S. 2836, The Preventing Emerging Threats Act of 2018, ACLU (June 12,
2018), https://www.aclu.org/letter/coalition-letter-opposing-s-2836-preventing-emerging-threats-act-2018
[hereinafter Coalition Letter].
41. Statement of David Glawe, Under Secretary of Intelligence and Analysis, and Hayley Chang, Deputy General
Counsel, U.S. Dept. of Homeland Sec., U.S. Senate Comm. on Homeland Sec. and Gov’t. Affairs, Hearing on
S. 2836, the Preventing Emerging Threats Act of 2018: Countering Malicious Drones (June 6, 2018),
https://www.dhs.gov/news/2018/06/06/written-testimony-ia-under-secretary-and-ogc-senate-committee-
homeland-security-and.
42. See Miriam McNabb, Countering Malicious Drones: Drone Stakeholders Comment on Tomorrow’s U.S.
Senate Committee Hearing, DroneLife https://dronelife.com/2018/06/05/countering-malicious-drones-drone-
stakeholders-comment-tomorrows-u-s-senate-committee-hearing/.
43. Id.
44. Snow, supra note 23.
Page 6 of 745. Id.
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