ALABAMA DEPARTMENT OF TRANSPORTATION AERONAUTICS BUREAU

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ALABAMA DEPARTMENT OF TRANSPORTATION AERONAUTICS
BUREAU

• ALABAMA LEAGUE OF MUNICIPALITIES
• 2016 Annual Conference
• Huntsville, Alabama
• May 16, 2016

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MUNICIPAL REGULATION OFUNMANNED AERIAL SYSTEMS
(UAS)(THE DRONES ARE COMING)

• PRESENTATION GOALS
• INTRODUCTION TO THE WORLD OF DRONES
• FEDERAL ROLE IN REGULATING DRONES
• DRONE INDUSTRY PLANS/DEMANDS
• ISSUES THAT MUST BE RESOLVED
• STATE LOCAL EFFORTS TO REGULATE DRONES
• THE LEGAL ARGUMENT FOR LOCAL DRONE LAWS
• CHALLENGES AHEAD FOR MUNICIPAL OFFICIALS
• WILL NOT FOCUS ON HOW CITIES CAN USE
  DRONES---TOPIC FOR ANOTHER DAY

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UNMANNED AERIAL SYSTEMS DEVELOPMENT(A REALLY,
REALLY BRIEF HISTORY)

• WHAT IS AN UNMANNED AERIAL SYSTEM (UAS)?
• Initial drone RD began in the 1950s for the
  military
• Essentially, anything that flies through the air
  without a pilot
• Fixed wing and quadcopters
• Can be flown autonomously or remotely guided
• Widespread recent military use in the Mideast
• Civilian sector applications have exploded due to
  technology and low cost
• Utilized for a wide range of civil applications
• Aerial mapping surveying (ALDOT is already
  testing/evaluating this use)
• Structural inspections (power lines, buildings,
  off shore oil rigs, flare stacks, etc.)
• Surveillance

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SOME OTHER UAS APPLICATIONS
FILMING POWER LINE INSPECTION PRECISION
AGRICULTURE FLARE STACK INSPECTION
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THE DRONE INDUSTRY TAKES OFF(Literally)

• TECHNOLOGY AND COST HAVE MADE DRONES A HOT
  CONSUMER PRODUCT
• SALES OF SMALL DRONES HAVE EXPLODED DUE TO HEAVY
  MARKETING (Simple and easy to fly)
• MORE REGISTERED DRONES THAN LICENSED PILOTS
  (342,000 AS OF FEBRUARY 16)
• COMMERCIAL USE OF DRONES GROWING EXPONENTIALLY

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AND KEEPS CLIMBING

• The FAA estimates purchases of drones by
  hobbyists will grow from 1.9 million this year to
  4.3 million sold annually by 2020
• Sales of drones for commercial use are expected
  to increase from 600,000 this year to 2.7 million
  by 2020
• Combined, drone sales are estimated at 2.5
  million this year, and expected to grow to 7
  million in 2020

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Economic Impact Estimated at 82B with over
100,000 Jobs Created AUVSI, 2013
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FEDERAL REGULATORY ROLE

• FEDERAL POLICY REGULATAION HAS LAGGED DRONE
  TECHNOLOGY
• THE FEDERAL AVIATION ADMINISTRATION HAS ULTIMATE
  AUTHORITY OVER AIRCRAFT AND MANAGING THE NATIONS
  AIRSPACE
• DRONES ARE CONSIDERED AIRCRAFT BY FAA, AND THUS
  SUBJECT TO REGULATION
• THE CURRENT PROCESS REQUIRES FAA TO AUTHORIZE
  DRONE OPERATIONS BASED ON WAIVERS AND EXEMPTIONS
  TO EXISTING FAA REGULATIONS
• DRONE INDUSTRY/USER GROUPS PRESSING FOR MORE
  FEDERAL ACTION ON DRONE OPERATIONS
• FAAS MAJOR CHALLENGE HOW TO SAFELY INTEGRATE
  DRONE FLIGHTS INTO THE NATIONS AIRSPACE SYSTEM
  (NAS)

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THE NATIONAL AIRSPACE SYSTEM(IN A NUTSHELL)

• 1956 GRAND CANYON MID-AIR COLLISION OF TWO
  AIRLINERS PROMPTED CONGRESS TO GRANT AUTHORITY TO
  FAA TO MANAGE NATIONS AIRSPACE
• IN 1958 CONGRESS AUTHORIZED FAA TO REGULATE
  AIRSPACE USE, MANAGEMENT, SAFETY, AIR TRAFFIC
  CONTROL, NAVIGATION EFFICIENCY
• AIR TRAFFIC CONTROL SYSTEM BASED ON PILOTED
  AIRCRAFT, RADAR CONTROL, TWO-WAY RADIO
  COMMUNICATION, SEE-AND-AVOID, ETC.
• AS ORIGINALLY DESIGNED, THE CURRENT SYSTEM DID
  NOT ANTICIPATE UNMANNED AIRCRAFT
• THE NAS CONSISTS OF A COMPLEX NETWORK OF AIRSPACE
  CLASSES, AIRWAYS, AIRPORTS NAVIGATIONAL AIDS

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THE ILLUSTRATEDNATIONAL AIRSPACE SYSTEM
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THE FAA ASSERTS ITS AUTHORITYOVER AIRSPACE

• FAA DOES ASSERT ITS AUTHORITY OVER CONTROLLING
  THE NAVIGABLE AIRSPACE (December 17, 2015 Fact
  Sheet)
• NAVIGABLE AIRSPACE HAS USUALLY BEEN CONSIDERED
  ANY ALTITUDE OVER 700 FEET ABOVE GROUND LEVEL
  (CONTROLLED AIRSPACE)
• FAA PREEMPTION OF AIRSPACE MANAGEMENT BASED UPON
• ESTABLISHING A CONSISTENT REGULATORY FRAMEWORK
  NATIONWIDE
• PROMOTING HIGHEST LEVEL OF SAFETY FOR AIRCRAFT
  PASSENGERS PEOPLE ON THE GROUND

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THE PROBLEM WITH DRONES

• CURRENTLY, THERE IS NO ESTABLISHED INFRASTRUCTURE
  TO ENABLE SAFELY MANAGE THE WIDESPREAD USE OF
  LOW-ALTITUDE AIRSPACE AND UAS OPERATIONS,REGARDLES
  S OF THE TYPE OF UAS (says NASA)
• A UAS TRAFFIC MANAGEMENT (UTM) SYSTEM FOR
  LOW-ALTITUDE AIRSPACE WILL BE NEEDED, PERHAPS
  LEVERAGING CONCEPTS FROM THE SYSTEM OF ROADS,
  LANES, STOP SIGNS, RULES AND LIGHTS THAT GOVERN
  VEHICLES ON THE GROUND TODAY, WHETHER THE
  VEHICLES ARE DRIVEN BY HUMANS OR ARE AUTOMATED
• NASA RESEARCH FOCUSED ON DEVELOPING A TRAFFIC
  MANAGEMENT SYSTEM FOR DRONES

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THE AIRSPACE MANAGEMENT CHALLENGECREATING A UAS
TRAFFIC MANAGEMENT SYSTEM
NASA's concept for a possible UTM system would
safely manage diverse UAS operations in the
airspace above buildings and below crewed
aircraft operations in suburban and urban areas.
This testing is scheduled through 2019 when it
will be turned over to FAA for further testing.
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AMAZONS AIRSPACE MANAGEMENT PROPOSAL
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WHAT THE AMAZON PLAN INCLUDES(THE DEVIL IS
ALWAYS IN THE DETAILS)

• DIVIDE UP THE AIRSPACE BASED ON A DRONES MISSION
  CAPABILITIES
• BELOW 200 FEET AGL, USE WILL BE DESIGNATED FOR
  LOW SPEED, LOCALIZED TRAFFIC (e.g., surveying,
  videos, inspections)
• DRONES WITHOUT ADVANCED COLLISION-AVOIDANCE
  CAPABILITIES WOULD BE RESTRICTED TO BELOW 200
  FEET
• BETWEEN 200 FEET 400 FEET AGL, MORE
  SOPHISTICATED DRONES WOULD BE ALLOWED TO OPERATE
• AIRSPACE CONTROL WOULD BE BASED UPON INDUSTRY
  SELF-REGULATION
• GOOGLE HAS ITS OWN PROPOSAL FACEBOOK WANTS TO
  FLY DRONES TOO

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UNRESOLVED QUESTIONS

• WHEN WILL INDUSTRY SENSE AVOID TECHNOLOGY BE
  DEMONSTRATED SAFE RELIABLE
• HOW WILL FAA RESPOND TO INDUSTRY SELF REGULATION
• WILL INDUSTRY BE REQUIRED TO PAY FOR THE USE OF
  THE AIRSPACE MUCH LIKE THE AIRLINES AND GENERAL
  AVIATION PAY FOR THE USE OF THE SKIES THEY FLY IN
• WHAT WILL BE THE REGULATORY ROLE OF STATE LOCAL
  GOVERNMENTS

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WHEN SHOULD STATE/LOCAL GOVERMENTS CONSULT
FAA(FROM THE FAA FACT SHEET)

• WHEN CONSIDERING UAS RESTRICTIONS ON
• FLIGHT ALTITUDES
• FLIGHT PATHS
• OPERATIONAL BANS
• ANY REGULATION OF NAVIGABLE AIRSPACE
• MANDATING EQUIPMENT OR TRAINING FOR UAS RELATED
  TO SAFETY
• GEO-FENCING REQUIREMENTS, FOR EXAMPLE

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WHEN CAN STATE/LOCAL GOVERNMENTS ACT TO REGULATE
DRONES(FROM THE FAA FACT SHEET)

• LAWS TRADITIONALLY RELATED TO STATE LOCAL
  POLICE POWER, INCLUDING
• LAND USE
• ZONING
• PRIVACY
• TRESPASS
• LAW ENFORCEMENT OPERATIONS
• EXAMPLES Prohibitions on voyeurism, hunter
  harassment, warrantless searches/surveillance,
  etc.
• CITIES CAN ENACT LOCAL LAWS REGULATING THE
  LOCATIONS WHERE DRONES CAN CANT TAKEOFF OR LAND

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WHAT IS CONGRESS DOING ABOUT DRONES

• 2012 CONGRESS AUTHORIZED FAA TO CREATE A PLAN
  FOR INTEGRATING DRONES INTO THE NATIONS AIRSPACE
  SYSTEM BY DECEMBER 2015
• DEADLINE OF 2015 MISSED
• CURRENT SESSION FAA BILL INCLUDES DRONE
  PROVISIONS
• PROVISION TO ABSOLUTELY PROHIBIT ANY STATE/LOCAL
  DRONE LAWS
• FEINSTEIN AMENDMENT PROPOSED TO PROTECT
  STATE/LOCAL DRONE AUTHORITY
• DRONE SAFETY AND PRIVACY ISSUES INCLUDED
• PILOT PROGRAM TO TEST/DEVELOP WAYS TO INTERCEPT
  OR SHUT DOWN DRONES IF THEY GET TO CLOSE TO
  AIRPORTS (ENHANCED GEOFENCING)
• DRONE OPERATORS WOULD HAVE TO TAKE AN ON-LINE
  KNOWLEDGE TEST

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FAAs FIRST STEPS

• IMPLEMENTED WAIVER/EXEMPTION PROCESS FOR DRONE
  OPERATORS
• PUBLISHED A SET OF PROPOSED sUAS RULES EXPECTED
  TO BE OUT IN JUNE 2016
• THESE RULES ADDRESS CERTAIN OPERATIONAL LIMITS,
  OPERATOR TRAINING, UAS REQUIREMENTS MODEL
  AIRCRAFT
• DOES NOT ADDRESS AIRSPACE CONTROL ISSUES
• DRONE REGISTRATION REQUIREMENT IMPLEMENTED
  JANUARY 2016
• MICRO-UAS (gt4.4 lbs.) RULES IN PROGRESS

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THE REGULATORY CHALLENGE GOING FORWARD

• FEDERAL PREEMPTION PREDICATED ON PILOTED
  AIRCRAFT, GROUND BASED RADAR, TWO-WAY RADIO
  COMMUNICATION, AIR TRAFFIC CONTROL COORDINATION,
  ETC.
• AIRSPACE CONTROL NORMALLY BEGINS ABOVE 700 FEET
  AGL
• DRONE PROLIFERATION AND INCREASING USE AT
  ULTRA-LOW ALTITUDES CHALLENGE THE NOTION OF
  FEDERAL PREEMPTION
• WILL FAA HAVE THE RESOURCES TO EXTEND ITS CONTROL
  BELOW 700 FEET OR WILL CONTROL BE DELEGATED TO
  STATE/LOCAL GOVERNMENTS /OR PRIVATE ENTITIES
• FAAS UNRESOLVED CHALLENGE SAFELY INTEGRATING
  DRONES INTO THE NATIONS AIRSPACE

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THE CURRENT POLICY VACUUM

• AMAZON GOOGLE PREDICT THAT COMMERCIAL DRONE
  OPERATIONS WILL INCREASE EXPONENTIALLY IN THE
  NEXT 10 YEARS
• THE INDUSTRY ESTIMATES THAT 85,000 DRONE FLIGHTS
  UNDER 400 FEET OCCUR NOW EVERY DAY
• THE TECHNOLOGY FOR INTEGRATING DRONES INTO THE
  ULTRA-LOW ALTITUDES IS STILL YEARS AWAY ACCORDING
  TO NASA FAA
• THE INDUSTRY IS DEMANDING SELF REGULATION BASED
  ON COMPLEX, UNPROVEN TECHNOLOGY (but it is
  rapidly evolving)

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WHAT ARE SOME STATES DOINGTO FILL THIS POLICY
VACUUM

• MANY STATES HAVE ALREADY ENACTED LEGISLATION THAT
  RESTRICTS DRONE OPERATIONS
• ACCORDING TO THE NATIONAL CONFERENCE OF STATE
  LEGISLATURES
• AT LEAST 41 STATES HAVE CONSIDERED DRONE
  LEGISLATION IN THEIR 2016 SESSIONS ALONE
• SEVEN STATES (ID, IN, OR, TN, UT, VA, WI) HAVE
  PASSED 10 PIECES OF LEGISLATION
• OREGON HAS PROHIBITTED WEAPONIZED DRONES ALLOWS
  PROPERTY OWNER LAWSUITS FOR DRONE OVERFLIGHTS
• TN PROHIBITS DRONE OPERATIONS W/IN 250 FEET OF
  CERTAIN CRITICAL INFRASTRUCTURE FACILTIES
  CRIMINALIZES LOW FLYING DRONES OVER PRIVATE
  PROPERTY
• UTAH PROHIBITS WILDLIFE HARRASSMENT
• THE LIST GOES ONAND ONAND ON

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WHAT IS ALABAMA DOING

• Governors Executive Order of January 23, 2015
  Designated ALDOT Aeronautics Bureau as the Lead
  Agency for all Unmanned Aerial Systems
• Established an 8-member UAS Council composed of
  agency directors, legislative members, and an
  airport authority member
• Initial Focus Prepare state agencies to operate
  sUAS aircraft (gt55 lbs.)
• Legislation introduced in the 2016 Session but
  withdrawn by the sponsors
• UAS Council will be forming a working group to
  draft comprehensive drone legislation for the
  2017 session (ALM will be invited to participate)

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WHAT ARE MUNICIPALITIES DOING TO FILL THIS
POLICY VACUUM

• MANY MUNICIPALITIES ARE CHALLENGING THE NOTION
  THAT FAA PREEMPTION IS ABSOLUTE IN MANAGING THE
  AIRSPACE
• SOME EXAMPLES
• PHOENIX / PARADISE VALLEY AZ Regulates the
  operation of drones
• AUGUSTA GA Regulates the launching and
  operations of drones
• CHARLOTTESVILLE VA Prohibits weaponized drones
• MIAMI FLORIDA Regulates flying drones over
  crowds
• KANNAPOLIS NC Prohibits launching drones from
  certain public property
• SANTA CLARA CA No Drone Zones established by
  ordinance
• THE LIST IS EXTENSIVE AND GROWING

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LEGAL BASIS FOR STATE/LOCALREGULATION OF DRONES

• UNITED STATES v. CAUSBY (SUPREME COURT, 1946)
  1st major case to analyze the airspace rights of
  land owners
• INVOLVED A CHICKEN FARMER WHOSE LAND WAS NEXT TO
  A SMALL MUNICIPAL AIRPORT USED BY THE U.S.
  MILITARY
• CAUSBYS CLAIM AIRCRAFT FLIGHTS (AS LOW AS
  67-83 FEET AGL) WERE KILLING HIS CHICKENS
  CONSTITUTED A 5TH AMENDMENT CLAIM TO A TAKING OF
  HIS PROPERTY
• THE COURT RULED IN CAUSBYS FAVOR
• JUSTICE Wm. DOUGLAS, WRITING FOR THE MAJORITY,
  DECLARED
• A LANDOWNER OWNS AT LEAST AS MUCH OF THE SPACE
  ABOVE THE GROUND AS HE CAN OCCUPY OR USE IN
  CONNECTION WITH THE LAND.

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LEGAL BASIS FOR STATE/LOCALREGULATION OF DRONES

• THE COURT ALSO NOTED THAT THE FACTS OF CAUSBY
  INVOLVED FLIGHTS
• SO LOW AND SO FREQUENT AS TO BE A DIRECT AND
  IMMEDIATE INTERFERENCE WITH THE
• ENJOYMENT AND USE OF THE LAND.

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LEGAL BASIS FOR STATE/LOCALREGULATION OF DRONES

• SIGNIFICANCE OF CAUSBY
• CREATED OR RECOGNIZED TWO TYPES OF AIRSPACE
• THE PUBLIC, NAVIGABLE AIRSPACE, NOT SUBJECT TO
  LANDOWNER CONTROL
• AIRSPACE BELOW THAT EXTENDING DOWNWARD TO THE
  SURFACE
• RECOGNIZED A PROPERTY INTEREST IN AIRSPACE
  IMMEDIATELY ABOVE THE LAND, BUT
• DID NOT DEFINE THE UPPER LIMIT OF THE ALTITUDE AT
  WHICH A PROPERTY INTEREST TERMINATES

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LEGAL BASIS FOR STATE/LOCALREGULATION OF DRONES

• BEFORE DRONES, ALTITUDES BELOW 500-700 FEET
  CONSIDERED UNCONTROLLED, OR NON-NAVIGABLE, EXCEPT
  FOR HELICOPTERS OR AIRCRAFT TAKEOFFS/LANDINGS
• PROLIFERATION OF DRONES HAS NOW MADE THE
  ULTRA-LOW ALTITUDES NAVIGABLE, AND THUS,
  REQUIRING CONTROL
• DRONES FLYING IN THESE ULTRA-LOW ALTITUDES
  CHALLENGE THE PROPERTY INTERESTS OF LANDOWNERS

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LEGAL BASIS FOR STATE/LOCALREGULATION OF DRONES

• WHAT ARE THE LEGAL SCHOLARS ARE SAYING WHEN IT
  COMES TO DRONES OPERATING IN TODAYS AIRSPACE
• PROPERTY INTEREST LAWS AND REGULATIONS HAVE
  TRADITIONALLY BEEN LEFT UP TO THE STATES,
  COUNTIES CITIES
• PROPERTY INTEREST DOCTRINE CAN BE USED TO BY
  CITIES AND STATES AS THE BASIS FOR LEGISLATING OR
  REGULATING DRONES
• THE COMMONS REGIME THAT GOVERNS HIGH-ALTITUDE
  AIRSPACE ISTHE ANTITHESIS OF THE PRIVATE
  PROPERTY REGIME THAT APPLIES TO SURFACE LAND

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LEGAL BASIS FOR STATE/LOCALREGULATION OF DRONES

• WHAT THE LEGAL SCHOLARS ARE SAYING ABOUT DRONES
  OPERATING IN TODAYS AIRSPACE
• STATE LOCAL GOVERNMENTS CAN ACT TO CLARIFY THE
  RIGHTS OF LANDOWNERS IN THE ULTRA-LOW ALTITUDES
• BY INFERENCE, STATE AND LOCAL GOVERNMENTS CAN
  REGULATE DRONES OPERATING AT THOSE ALTITUDES THAT
  ENCROACH ON THE PROPERTY RIGHTS OF INDIVIDUALS
• AS MUNICPALITIES PURSUE DRONE ORDINANCES THAT
  CHALLENGE FAA PREEMPTION, COURT CASES ARE SURE TO
  FOLLOW

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CHALLENGES AHEAD FOR MUNICIPAL OFFICIALS

• RECREATIONAL DRONE FLIGHTS WILL CONTINUE TO
  SKYROCKET
• COMMERCIAL USE OF DRONES WILL GROW EXPONENTIALLY
• MUNICIPAL LEADERS MUST BEGIN TO EDUCATE
  THEMSELVES ABOUT ALL FACETS OF DRONE TECHNOLOGY
  OPERATIONS
• BECOME FAMILIAR WITH HOW TO RESPOND TO DRONE
  COMPLAINTS
• EACH MUNICIPALITY MUST DECIDE IF WHEN TO
  REGULATE DRONES HOW THEY WILL BE REGULATED
• ANTICIPATE PUBLIC DEMAND TO TAKE ACTION TO
  REGULATE DRONES
• EXPECT THE DRONE INDUSTRY AND DRONE OPERATORS TO
  MAKE THEIR OWN DEMANDS (REGULATION WILL STIFLE
  THE INDUSTRY!)
• BE PREPARED FOR LAWSUITS

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A FEW FINAL THOUGHTS

• DRONES ARE A DISRUPTIVE TRANSFORMATIVE
  TECHNOLOGY
• EFFECT THIS TECHNOLOGY IS HAVING ON SOCIETY IS
  VERY SIMILAR TO THE AUTOMOBILES IMPACT ON EARLY
  20TH CENTURY SOCIETY so, weve been here
  before!
• BIG QUESTION HOW DO WE INTEGRATE DRONES INTO
  SOCIETY
• DRONES WILL CHALLENGE MUNICIPAL OFFICIALS TO
  BALANCE COMPETING DEMANDS (part of the job
  description!)

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QUESTIONS, COMMENTS, DISCUSSION
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FOR MORE INFORMATION(CALL YOUR LAWYER, OR )

• JOHN C. EAGERTON IV, D.P.A.
• CHIEF, AERONAUTICS BUREAU
• ALABAMA DEPARTMENT OF TRANSPORTATION
• 1409 COLISEUM BOULEVARD
• MONTGOMERY, ALABAMA 36110
• PHONE [phone]
• E-MAIL eagertonj_at_dot.state.al.us