UAS: A New Legal Frontier in Aviation

Slack Davis Sanger aviation attorney Ladd Sanger recently published an article about unmanned aerial systems (UAS) and potential legal issues associated with them in Texas Lawyer. This article appeared in the July 14, 2014, edition.

UAS: A New Legal Frontier in Aviation
by Ladd Sanger, Slack Davis Sanger, L.L.P.

Drones are in the news, but what do they mean for lawyers? From FAA regulations to the risk of uninsured liability for crashes to invasion of privacy lawsuits, attorneys need to understand this new world of readily available, unpiloted aircraft.

Sophisticated unmanned aerial systems (UAS) have become economically feasible for use by companies and individuals in many commercial and recreational applications. The FAA Modernization and Reform Act of 2012 exempted model aircraft from the UAS regulations. In contrast, the act effectively grounded commercial or business use of UAS.

At this time, the FAA must authorize commercial use of UAS on a case-by-case basis. To date, the FAA has only authorized one operation in the Arctic. Furthermore, the FAA is pursuing those that violate the de facto UAS commercial use ban.

In a March 6 ruling in Huerta v. Pirker, National Transportation Safety Board Administrative Law Judge Patrick Geraghty ruled in favor of a commercial UAS operator. The ALJ found that the FAA has no regulations that apply to the small UAS Ritewing Zephyr powered glider that Raphael Pirker was flying.

The ALJ’s ruling is on appeal to the full NTSB. The FAA stands a good chance of reversing the ruling. However, if it doesn’t, the FAA can issue an emergency order that will address the ruling—and effectively maintain the ban on commercial operations. The reality is that until the FAA changes the regulations to allow the use of UAS in the National Airspace System, the United States won’t realize the many beneficial applications of UAS.

Taking Flight
The first opportunity to realize the benefits of UAS will come when the FAA complies with the FAA Modernization and Reform Act, §333. This will allow for the commercial line-of-sight use of small UAS in low-risk operations in unpopulated areas. These applications likely will include filming on closed sets, power line inspection, crop monitoring and spraying, and gas flare stack inspections.

The agricultural uses of UAS could revolutionize farming. In Japan, UAS spray the majority of crops. The UAS is less expensive than piloted aircraft. Plus, the rotor wash from the small UAS allows the pesticide to adhere to both the top and bottom of the leaves.

The FAA does need to be careful about the regulations it ultimately adopts for UAS. Several UAS crashes have injured innocent people on the ground. Because there is no insurance requirement for UAS operation, the public at large is at risk for injury by a UAS operator who does not take appropriate financial responsibility.

The risk of injury to the public is too high to allow UAS operation outside of a controlled area. The industry’s accident rate is approximately one crash per 1,000 hours of operation, which is approximately 100 times higher than manned aircraft, according to a paper on the International Helicopter Safety Team’s website, “UAV Failure Rate Criteria for Equivalent Level of Safety,” which was presented in 2005. The fact that illegal commercial operations and hobbyists are routinely flying UAS over crowded events further compounds the risk. In the past couple of months, I have witnessed on several occasions UAS being flown over outdoor restaurants and outdoor public events. To the extent the owners or promoters of these events consent to the use of UAS, they are likely exposing themselves to liability in the event of an accident.

Another emerging area of law with UAS is invasion of privacy. This concern applies to both the hobbyist and commercial operator. Given that consumers can spend $200 to purchase a small UAS that can carry a high-definition camera, these UAS pose significant privacy concerns.

Imagine a person flying his UAS from his balcony and recording video through his neighbors’ windows, capturing activity otherwise not visible to the public. To compound matters further, operators can then publish these videos online. While none of these invasion-of-privacy cases have made their way through the court system, it is only a matter of time.

The insurance industry also faces changes as a result of UAS operations. While most umbrella and homeowners’ policies have aviation exclusions, it is unclear whether those exclusions will apply to UAS use for purposes of property, personal injury or invasion of privacy coverage. These waters are especially muddy in the context of the hobbyist operating the UAS under FAA Advisory Circular 91-57, which governs operation of model aircraft.

The UAS industry can bring big changes to many aspects of Texans’ daily lives. Attorneys will need to be on the lookout for changes in the law and in insurance industries. The legal system is already grappling with how to deal with UAS; these challenges will only intensify as increasingly bigger and more complicated UAS operate in the National Airspace System.

The next big step in this evolution was scheduled to occur this fall when the FAA was supposed to release its Notice of Proposed Rule Makings for commercial use of UAS weighing less than 55 pounds. According to the June 26 Department of Transportation Inspector General Report, the FAA will not meet the August deadline for small UAS integration or the Sept. 30, 2015, deadline for safe UAS integration. In the meantime, many people will be watching—and waiting.

Reprinted with permission from the July 14, 2014, edition of Texas Lawyer© 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – reprints@alm.com or visit www.almeprints.com.