Drones - unmanned but not unregulated

Intellectual Property and Technology Alert

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Reports that an aircraft carrying 165 passengers narrowly avoided collision with an unmanned aircraft over central London in July 2016 have sharpened policymakers' minds on the need to implement a more robust regulatory framework governing the use of unmanned aircraft, particularly when used in the vicinity of airports and passenger aircraft. In response to such incidents and following the first industry report into user behaviour, attitudes towards and responsible use of unmanned aircraft, the Civil Aviation Authority (CAA) published a revised Dronecode on 24 November 2016 outlining the rules for non-commercial drone users in the UK. This was followed on 1 December 2016 by an announcement from the EU Council that a general approach had been agreed on revised common safety rules for civil aviation, including a draft regulation containing the first ever rules for civil unmanned aircraft.

In light of these announcements, this article provides a summary of:

  • The current UK regulatory framework governing the use of unmanned aircraft
  • The overarching EU regulatory framework
  • The key differences between the approach in Europe and the framework adopted in the US

The UK framework - the Dronecode

General framework

The CAA prohibits individuals recklessly or negligently causing or permitting an aircraft to endanger any person or property.

This requirement specifically applies to unmanned aircraft operators and stipulates that:

  • Unmanned aircraft operators cannot cause or permit any article to be dropped from a small unmanned aircraft in a manner that would endanger persons or property
  • Unmanned aircraft may only be flown if the operator is reasonably satisfied that the flight can be safely made, that unmanned aircraft operators must maintain direct, unaided visual contact with the aircraft itself as well as any persons, vehicles, vessels and structures for the purpose of avoiding collisions
  • Where the mass of the unmanned aircraft exceeds 7 kg (excluding fuel) that operators must not fly at a height of more than 400 feet and distance of more than 500 metres without requisite permission from Air Traffic Control

Commercial use of drones

CAA permission is required before using drones for commercial purposes.

Further restrictions are imposed on operators of unmanned surveillance aircraft. These are defined as small unmanned aircraft equipped to undertake any form of surveillance or data acquisition. Operators are also forbidden from flying over or within 150 metres of any congested area or organised open-air assembly of more than 1000 persons or within 50 metres of any person or vessel, vehicle or structure unless permission has been granted by the CAA.

In addition to the rules outlined above, drones with an operating mass exceeding 20 kg are treated more like full size aircraft and are subject to a number of additional requirements detailed under Civil Aviation Publication 722, including an increased degree of scrutiny on aircraft design, the need for operational safety management processes, a focus on pilot competency and registration and licensing requirements. Unmanned aircraft with an operating mass exceeding 150 kg are also subject to additional certification requirements imposed by the European Aviation Safety Agency (EASA).

Where it is possible to locate the drone pilot following an incident and the individual is found to have committed an offence, the CAA can use its powers to prosecute for misuse of drones and impose penalties ranging from five years' imprisonment for endangering an aircraft to fines for less dangerous activities.

The EU approach - a prototype regulation

While there is not currently an EU Unmanned Aircraft Regulation, the EASA has in effect produced a Prototype Commission Regulation on Unmanned Air Operations. This proposes to impose various regulatory obligations on drone users dependent on the category of operation, as follows in order of increasing risk:

  • Open operations, where no prior authorisation by the competent authority is required. This captures all low risk activities. While flights above crowds are prohibited, flights above people not related to the operation in cities or populated areas are allowed and commercial operations can fall within this criteria
  • Specific operations, where prior authorisation must be given by the competent authority. This category captures those operations posing more significant aviation risks such as instances where unmanned aircraft are to be flown in a crowded airspace or near the vicinity of large crowds
  • Certified operations, which require certification of the unmanned aircraft, a licensed remote pilot and an operator approved by the competent authority. Whilst somewhat theoretical at this stage, this category would capture those instances where an unmanned aircraft posed a level of risk similar to that inherent in normal manned aviation such as, for example, a future unmanned aircraft which was similar in size to a large airplane and capable of travelling at comparable speed

The level of requirements imposed therefore depends on the category of operation and include provisions confirming that the drone operator is ultimately responsible for safe operations, requiring that competent authorities define airspace areas, imposing visibility and height restrictions (e.g. up to a height of 50m for open use) and stipulating safety obligations for manufacturers.

The US framework - a patchwork quilt

The US regulatory regime is complicated by the fact that the Federal Aviation Authority (FAA), state and federal laws interact to form a patchwork quilt of regulation, although most of the main requirements can be found in part 107 of the Small Unmanned Aircraft Regulations. Among other requirements, these rules stipulate that drones, or Unmanned Aerial Systems (UAS) as they are defined under US law, must weigh under 55 pounds (25 kg) inclusive of payload or other equipment, may only be used during daylight hours, may not be operated at an altitude above 500 feet and may not exceed 100 miles per hour. The rules also impose a general requirement on the operator to ensure that UAS always avoid manned aircraft and are never operated in a careless or reckless manner.

An operator is restricted to flights in their visual line of sight and cannot conduct flights over persons who are not directly involved in the drone operation without first obtaining permission from those persons. Air traffic control permission is also required within certain categories of airspace.

However, unlike in the UK, operators of UASs must be at least 16 years old and hold a remote pilot airman certificate or be under the direct supervision of someone with such a certificate. The pilot is also responsible for ensuring that the drone is safe before flying by performing pre-flight visual and operational checks. In addition, since December 2015, the FAA has required all drone operators to register online with the FAA before flying outdoors. Failure to register an aircraft can result in civil penalties up to $27,500 and criminal penalties can include fines of up to $250,000 and/or imprisonment for up to three years.

An evolving regulatory model in the UK and Europe

As discussed above, UK rules governing the use of drones are still evolving and are likely to change as rules are implemented at an EU level and drone use becomes more widespread. Indeed, the House of Lords EU Committee suggested as long ago as February 2015 that all commercial drone operators should register their drones on an online database or app, and that in the longer term this should also encompass leisure users. It therefore seems likely that such a measure will be implemented in the UK in the near future, particularly in light of increasing instances of conflict with civilian aircraft. New rules could require equipping drones with unique identifying components at the point of sale, which are traceable back to their owners in the event they are used illegally, making prosecution of wrong-doers easier.

At a European level, the Prototype Regulation suggested by EASA proposes the creation of common European safety rules for operating drones regardless of weight, and suggests that rules should focus more on how and under what conditions the drone is used, rather than only the weight of the drone. This should help concentrate drone pilots' minds on the rules which apply to them. Combined with compulsory registration, this would go some way towards structuring and tracking the use of drones and would more closely align the European model to that which is currently adopted in the US.

The proposed EU Regulation also suggests that geofencing could be used to prevent use in the vicinity of passenger planes. This involves using GPS co-ordinates to define "drone no-fly zones" in which a drone's navigation software would be disabled.

Conclusion

The regulation of unmanned aircraft in the UK, Europe and the US continues to develop as the spread of these aircraft grows and policymakers respond to evolving risks. While the UK and European regimes have not yet imposed an equivalent registration regime adopted in the US, efforts are being made to align and enhance regulation around drones operating near aircraft and powers are already in place for regulators to take enforcement action against operators who fail to confirm with relevant safety requirements.

In any event, the one certainty seems to be that the growth of the drone market will be mirrored by growth in the statute book as the regulatory framework responds to the challenges presented by this dynamic and emerging market.