Perspectives

Why Drones Are Dive-Bombing the FAA

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  • Lisa Ellman, McKenna Long & Aldridge

  • Lisa Ellman, McKenna Long & Aldridge

  • Lisa Ellman, McKenna Long & Aldridge

Speaker

Lisa Ellman
Co-chair, Unmanned Aircraft Systems Group, Hogan Lovells LLP


Session Description:
UAVs, more lightly regulated in most other countries, will soon be all around us, checking crops, inspecting bridges, delivering goods, aiding law enforcement, gathering news. How do we shepherd this coming autonomous flock?

Ellman: So we’ve heard a lot today about how policymaking can be reactive and bureaucratic and slow and technology moves quickly ahead, and entrepreneurs and innovators move very quickly while policymaking lags behind. And it’s often said that innovators and policymakers have nothing in common with each other. But the reality is that innovators and policymakers need each other and that is why this conference is such a great opportunity to bring innovators and policymakers together.

Now, I’m here to talk about drones. We’re in the midst of drones fever in our country. How many of you actually own a drone? How many of you have seen a drone fly even if you don’t own a drone?

So first let me tell you a little bit about my background. As David mentioned, for the last several years I worked for the White House in the Department of Justice in a variety of policymaking roles and my focus was on innovation and coming up with new ways to make government work better using innovation, open data, and focusing on making government more participatory and collaborative. And in 2012, the FAA [Federal Aviation Administration] Reauthorization Act mandated that the federal government integrate drones into our national airspace, and so at that point the federal government as a whole started to pay attention to the whole domestic drones integration effort and started to focus on it. The FAA had done some work on it but not the federal government, or less so the federal government as a whole. So I was asked to go lead the drones policy working group at the Department of Justice and to participate as a member of the White House working group on all of these issues for a year or so as we crafted some of the policies surrounding the use of drones in the United States. I’m now in private practice, so as a partner in Hogan Lovells, I assist clients and companies who are eager to be able to use drones here in the United States for a variety of reasons, and I will talk more about that in a moment.

So what is a drone? A drone can be anything from a toy, like a model aircraft that we fly in the park and we have done for many years, to a tool of industry—or of course, as we hear about a lot in the news, tools of war. Now, it’s no surprise perhaps that we have lots of policy issues involved with integrating drones into our national airspace because the three of these things, even though they’re very, very different vehicles, all have the same name and that’s led to some misconceptions across the country in terms of some of the privacy and security issues.

Now, my work has focused only on drones being flown here in the United States. And drones have really taken off as a platform in comparison to helicopters or manned aircraft for example because they’re cheaper and more mobile and easy to fly and can get where humans can’t.

So I want to introduce my colleague Jeremy Reynolds, who will be able to fly his drone for us so we can all get a sense of some of the policy issues that are raised by the use of drones and also see what one flying here looks like.

[DRONE DEMONSTRATION]

Ellman: Excellent. Thank you, Jeremy. That’s Jeremy Reynolds of RTI Forensics. Thank you so much. That is an inspiring drone. That’s actually the DJI Inspire and we were—

Kirkpatrick: That’s a pretty state of the art drone.

Ellman: It is a very state of the art drone. But we were having a conversation, the technology is moving so quickly that since Jeremy just bought this DJI Inspire very recently there has been two new versions that have come out that he now wants to buy.

Kirkpatrick: How much does that cost, by the way?

Ellman: Jeremy?

Reynolds: Depends on what you have—$6,000.

Ellman: This is a very nice drone. You can get one at Bed, Bath & Beyond for $80 dollars, or even less, but this is a very useful drone.

So we can divide the users of drones into three categories: hobbyists—and that’s an intent based test. Do I plan to use this drone purely for recreational purposes? I’m going to fly a drone in the park and I want to be able to take pictures of myself and post those photos on Facebook. That is a recreational use of a drone, perfectly legal within a certain set of guidelines—outside of Washington DC, because this is restricted airspace, but within a certain set of guidelines that is totally fine and has been for many years.

Now, public safety and law enforcement agencies are eager and excited to be able to use drones for everything from finding missing hikers to increasing officer safety and making law enforcement and public agency tasks more efficient and cost effective. And of course commercial entities can’t wait to be able to use drones. Jeremy’s company focuses on disaster response and he’ll be using drones. We’re actually getting him approval right now to be able to fly his drones, to be able to respond to disasters such as fires or other disasters. Filmmakers can’t wait to be able to film movies using drones. And of course we’ve heard a lot about package delivery. Amazon and others want to be able to deliver their packages with drones. Farmers, it’s been said that 80% of eventual drone use in the commercial sector will be in precision agriculture, so both for crop dusting as well as for plant inspection. Utilities and energy uses, so flare stack inspection and pipeline inspection and power line inspection, tasks that are traditionally very dangerous for people to do, drones can do with very low risk. And of course, delivering medicine to rural areas.

Now, the unfortunate reality is that the use of drones commercially here in our country is currently illegal. So right now here in the United States, Congress has mandated that the federal government integrate drones into our national airspace, and the international community is well ahead of us in this effort. So in Japan 85% of crop dusting is done with drones. Monitoring wildlife and helping indigenous people protect land in Canada, in Australia, they’re commonly used. It was widely reported that Amazon had to go test for research and development in Canada, across the border, because they couldn’t do so here. And of course most importantly, Domino’s has actually delivered a hot pizza in England using a drone. So the international community is well ahead of us in this effort, though we are moving quickly and catching up here in the US, but we still have some work to do.

So the policy issues, what policymakers are thinking about right now and kind of where the delay has come in are the security and safety and privacy issues surrounding the use of drones. So on the safety side, you can imagine policymakers thinking about these types of issues. So for example, how do we know that Jeremy, as a pilot, is qualified to be able to fly a drone? How do we know that the drone is going to be able to avoid other aircraft and other drones and people and structures on the ground? That’s what the FAA is hard at work at. They’re mandated with regulating the national airspace in terms of safety and operations. So we took a big step in February, and it was a very positive step. The FAA notice of proposed rulemaking, which is just a proposed rule, to authorize commercial operations and civil operations of drones here in the United States was released to the public and it would provide for, which was very important for industry—it was actually very well received by industry. It only received, during the public comment period, 4,400 comments, which is way substantially less than policymakers had thought they would receive.

The biggest things to note are a UAS operator certificate not needed. Right now in order to fly a drone—and I’ll talk a little about this in a moment—but in order to be able to fly a drone you actually need a private pilot’s license. You have to be able to fly a manned aircraft in order to fly a drone commercially here in the United States. That doesn’t make a lot of sense as applied to the use of drones. This new rule will allow for a UAS operator certificate with a knowledge test. Some think that being able to play video games actually is a better indicator of being able to fly a drone than being able to fly a manned aircraft.

It would be under 55 pounds, 500 feet up in the air, up to a 100 miles per hour, and of course flown away from people in airspace. Right now the FAA is regulating drones as if they will fall out of the sky at any time, and the reality is that that does sometimes happen and so it’s important that we don’t fly over crowds of people or in congested areas.

Now, David, you had asked if Jeremy was filming the—actually I’ll get to that in a second. First, in the meantime you can get a 333 exemption, which is what I’m working on getting for Jeremy and his team, a 333 exemption in order to be able to fly. So while it’s not broadly authorized to fly drones here in the United States, you can go to the FAA and say, “I understand that I have to be abiding by the Federal Aviation Regulations because a drone is considered an aircraft for legal purposes, and therefore I’m going to fly with an equivalent level of safety and this is how I’m going to do it.” And you explain how it’s a low risk operation and the FAA will go ahead and authorize your individual flights right now in our national airspace. So as of this week there have been about 2,300 petitions that have been requested and 524 approved. That means 524 companies here in the United States have the ability to be able to fly drones for their business operations legally, and they can fly anywhere in the country. It’s not geographically constrained. So that is a good, positive step, although of course it’s not—we need an actual rule that will make it broadly authorized rather than just do piece by piece.

So now, David, you had asked if we were all getting videoed when the Inspire was flying. The answer is yes. Jeremy, perhaps on his cell phone, will have a download of how we all looked on our phone. I received a drone for the holidays, very exciting, from my fiancé. It was a very romantic gift. But I was very excited about it. And we started flying it around our condo and I didn’t realize—and I work on these issues—but I didn’t realize that it was filming us the whole time. So I then went to my phone like ten minutes later and had a full, you know, could rehash all the conversations that we had had for the previous ten minutes. The reality is that there are some privacy concerns. Some of them are unique to drones, some of them aren’t. There are a lot of platform neutral rules that would apply to limit our conduct in this space. But policymakers are also thinking about these issues, and so the same the day the FAA issued the notice of proposed rulemaking, the White House issued a presidential memorandum on transparency and privacy and accountability and civil liberties issues that governs the federal government’s own use of drones as well as establishes a multi-stakeholder process to talk about commercial drones and privacy issues. So we will a see a lot of that work happening here soon.

Now, the reality is all technology can be used for good and for bad and these different uses are not unique to drones. The important thing to keep in mind is that many problems have solutions, and I like to think about this in terms of policymakers and innovators working together and it’s a two-way street. Policymakers must promote innovation but innovators must also work hand in hand with policymakers. I call this “polivation,” so policymaking that promotes innovation and innovators working hand in hand with policymakers. And innovators are the ones—there’s a lot of technologies out there that could actually help with a lot of these safety and privacy concerns that we’re worried about. Geofencing, for example, could prevent drones flying over us in areas where we don’t want it to and collision avoidance software could help with some of the safety issues. Innovators are the ones that understand these technologies, understand these use cases, and so for this industry to move forward we really need policymakers and innovators to sit together at the same table and to work some of these issues out and I think that way we will have a very exciting industry, lots of amazing things to come. A lot of the use cases for drones we haven’t even begun to imagine, and I think it’s going to be a very—the future is here, it’s an exciting time, and really the success of this industry depends on innovators and policymakers working together. Thank you.

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